Civil Liberties, Human Rights and the HRA 1998

Question 1

Arguments for legal protection of human rights?

Answer 1

Arguably a legal means to restrict the capacity of the state to interfere in individuals’ lives.
Rights allow us to pursue particularly important forms of human activity e.g., to speak freely, to protest, to worship the religion of our choice or not to hold any religious beliefs
They also serve as obstacles from unwanted interference by the state (they serve as limitations to the state’s power to arrest us, imprison us, torture us)
Some of these rights are absolute (prohibition of torture), and some are qualified (freedom of expression)

For qualified rights, restrictions are permissible where the exercise of the right conflicts with the rights of other individuals or with the interests of the community as a whole

Question 2

What are the critiques of human rights?

Answer 2

(i) Rights that are only negative in nature are insufficient. They must be supplemented through positive obligations of state to assist everyone in enjoying the right
(ii) Equality is more important than liberty
(iii) Rights are too individualistic
(iv) Who should ultimately decide how far human rights protection should extend?

Question 3

‘Negative/residual’ liberties

Answer 3

We are free to do anything unless expressly prohibited

Question 4

Positive ‘list’ of rights

Answer 4

The law specifically provides that something can be lawfully done

Question 5

Entick v Carrington (1765) 19 St Tr 1030

Answer 5

English common law principle that a person’s home should be free from arbitrary invasion and that the executive only has those legal powers which are recognised by the courts

Question 6

Liversidge v Anderson [1942] AC 206

Answer 6

During the war, the HoL found that the Home Secretary Sir John Anderson, in order to safeguard public safety, could in an emergency situation detain a man if he had “reasonable cause” to believe Liversidge was a man of “hostile associations”. Lord Atkin gave a critical dissenting judgement

Question 7

The ECHR system

Answer 7

ECHR was signed by the UK in 1950 and ratified in 1951 - being entered into force in 1953

UK allowed for the right of individual petition to the European Court of Human Rights in 1966 - allowed everyone to complain to the European Court of Human Rights if they believed their rights had been violated

The Court accepts petitions from individuals, NGOs, groups, and other States

Question 8

ECHR system (2)

Answer 8

For the Court to examine the merits of your case, you must have (a) victim status and (b) you must have exhausted all available domestic remedies before approaching the Court

The Court cannot strike down primary or secondary legislation of a contracting party

Question 9

Article 46 ECHR

Answer 9

“The High Contracting Parties undertake to abide by the final judgement of the Court in any case to which they are the parties”

Question 10

Committee of Ministers

Answer 10

Supervises the execution of the European Court of Human Rights’ judgements

Question 11

Article 30 ECHR

Answer 11

“Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention […] or where the resolution of a question before the Chamber might have a result consistent with a judgement previously delivered by the Court, the Chamber may […] relinquish jurisdiction in favour of the Grand Chamber”

Note: There are 5 Sections of the Court and the Grand Chamber

Question 12

Article 43 ECHR

Answer 12

“Within a period of three months from the date of the judgement of the Chamber, any party of the case may, in exceptional cases, request that the case be referred to the Grand Chamber”

Question 13

Judges at the European Court of Human Rights

Answer 13

They serve for a non-renewable 9-year term. There is one judge for every state party to the ECHR

When a position is vacated, the state party nominates three individuals and the Parliamentary Assembly of the COE elects the judge

The national judge is always part of the Chamber examining an application against their home state. Judges, however, do not serve as state representatives, but instead serve in their individual capacity

Question 14

Articles 2-7 (basic rights and almost no exceptions are permitted)

Answer 14

Art 2 - protects the right to life
Art 3 - guarantees freedom from torture or human or degrading treatment or punishment
Art 4 - guarantees freedom from slavery, servitude or forced or compulsory labour
Art 5 - protects the right to liberty and security of the person
Art 6 - protects the right to a fair trial
Art 7 - guarantees freedom from retroactive criminal penalties

Question 15

Articles 8-12 (permit more exceptions)

Answer 15

Art 8 - the right to respect for private and family life, home and correspondence
Art 9 - freedom of thought, conscience and religion
Art 10 - freedom of expression
Art 11 - freedom of assembly and association
Art 12 - the right to marry and found a family

Question 16

Article 14 ECHR

Answer 16

freedom from discrimination on grounds such as sex, race etc. but only in relation to the rights and freedoms protected

Question 17

An example of the ‘qualified’ nature of such provisions

Answer 17

Article 10: freedom of expression

Question 18

Protocols to the ECHR have added, for example…

Answer 18

(i) Right to enjoyment of possessions; (ii) Right to education; (iii) The right to free elections; (iv) Freedom of movement; and (v) Abolition of the death of penalty

These require to be ratified separately by Member States

Question 19

Article 15 ECHR

Answer 19

States can derogate from the Convention in certain circumstances:

(i) “in time of war or other public emergency threatening the life of the nation”
(ii) “to the extent strictly required by the exigencies of the situation”
(iii) “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7”

Question 20

Rights Protection in Scotland pre-HRA

Answer 20

In early cases, the ECHR was treated like any other international treaty in a dualist system, which meant that without domestic enactment, international law would not be enforced by the courts

Kaur v Lord Advocate. 1980 SC 319, Lord Ross appeared to suggest that the Convention could not be referred to even as an aid to interpretation of a statute

R v Secretary of State for the Home Department, ex p Brand (1991): where there is a statutory ambiguity, an interpretation compatible with the Convention should be preferred

Anderson v HM Advocate (1996): the HoL observed that the ECHR reflected principles that have long been part of Scots law. The HoL was prepared to use the ECHR as an aid to interpretation in Scottish cases. However, since Anderson did not involve a question of statutory ambiguity, it was not clear if the decision had Brough Scots law in line with English law as established in Brand

T v Petitioner (1997): equivalent case to Brind for Scotland

Question 20

Rights Protection in Scotland pre-HRA

Answer 20

In early cases, the ECHR was treated like any other international treaty in a dualist system, which meant that without domestic enactment, international law would not be enforced by the courts

Kaur v Lord Advocate. 1980 SC 319, Lord Ross appeared to suggest that the Convention could not be referred to even as an aid to interpretation of a statute

R v Secretary of State for the Home Department, ex p Brand (1991): where there is a statutory ambiguity, an interpretation compatible with the Convention should be preferred

Anderson v HM Advocate (1996): the HoL observed that the ECHR reflected principles that have long been part of Scots law. The HoL was prepared to use the ECHR as an aid to interpretation in Scottish cases. However, since Anderson did not involve a question of statutory ambiguity, it was not clear if the decision had Brough Scots law in line with English law as established in Brand

T v Petitioner (1997): equivalent case to Brind for Scotland

Question 21

HRA 1998 - mechanisms and operation

Answer 21

Came into force in the UK in October 2000 allowing Convention rights to be enforceable in domestic courts

Question 22

After the HRA 1998, can petitions still be brought to the ECtHR against the UK?

Answer 22

Yes and can be done in 4 circumstances:

(i) Where the HRA 1998 does not provide a remedy
(ii) Where the violation of the Convention right has occurred as result of UK legislation, in respect of which the UK courts are only empowered to issue a declaration of incompatibility
(iii) Where the UK courts have determined that no violation of a Convention right have occurred, the applicant may wish to take the matter to the Strasbourg court
(iv) Where the law relating to a Convention right is unclear or indeterminate, the UK courts may not wish to uphold a right, and the matter can only be resolved through an authoritative decision from the Strasbourg court

Question 23

HRA 1998, s 2 - “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgement, decision, declaration of the European Court of Human Rights”

Answer 23

What is meant by taking ‘into account’?:
R (Anderson) v SS for Home Department [2003]: this case told us that domestic courts and tribunals ‘will not without good reason depart from the principles laid down in a carefully considered judgement of the Grand Chamber’. At [18] per Lord Bingham. There is an implied assertion that there may be exceptional circumstances where the HoL may not follow convention rule

Question 24

Does the HRA 1998 s2 mean that lower domestic courts are relieved of their duty to follow the prior HoL rulings where they conflict with the Strasbourg Court?

Answer 24

Kay v Lambeth LBC [2006]: the HoL was unanimous in holding that they are not relieved of this duty

Question 25

Can domestic courts provide more generous Convention rights protection than the Strasbourg Court?

Answer 25

R (Ullah) v Special Adjudicator [2004] UKHL 26: “The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less” per Lord Bingham. There is a duty to keep pace with Strasbourg but there is no duty to do more than they require

R (Marper) v Chief Constable of South Yorkshire [2004] UKHL 39: “We must interpret the Convention Rights in a way which keeps pace with rather than leaps of the Strasbourg jurisprudence” per Lady Hale. The UK courts must not try to get ahead beaches the authority is Strasbourg and isn’t appropriate for the UK courts to try go beyond that

Question 26

HRA 1998 s 3 - “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Imposes on the courts a duty to interpret legislation compatibly with convention rights, as far as it is possible

Answer 26

Deals with the relationship between Convention Rights and UK legislation (Primary and Subordinate)

Question 27

How have domestic courts interpreted the obligation under s3?

Answer 27

R v A [2001]: “The interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings […] Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights”. Per Lord Steyn

Re S (Care Order: Implementation of Care Plan) [2002]: Section 3(1) of the 1998 Act is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute. The judge’s task is to interpret, not to legislate. S3 doesn’t give a judge the right to change the meaning and intent of legislation but, allows them to read it in compatibility with the rights

Ghaidan v Godin-Mendoza [2004]: leading case for s3: The Rent Act 1977 allowed the surviving spouse of a protected tenant of a dwelling house to succeed to the statutory tenant on the tenant’s death, if living there. A person living with the original tenant as “his or her wife or husband” was treated as a spouse for these purposes. The petitioner in this case complained that this breached his Article 8 ECHR rights since he was prevented from succeeding to the statutory tenancy of his late partner, with whom he had lived in a stable homosexual relationship for almost 20 years - HoL relied on s3 to read down the provisions so as to allow the same sex partner of the deceased tenant to succeed to the statutory tenancy

Question 28

Criticism that has arose from Ghaidan case

Answer 28

Lord Miller (dissenting); Lord Rodger; Lord Nicholls; and other criticisms

Question 29

How is the reading out requirement carried out?

Answer 29

(1) Firstly, judges examine what the natural meaning of the legislation is
(2) Then they ask whether this natural meaning would produce an outcome which would infringe on Convention rights?
(3) If yes, is it possible to read and give effect to the relevant provisions of domestic law in such a way as to produce an outcome which is compatible with convention rights?
(4) If the previous step is not possible, the court must proceed with HRA 1998 s4. Courts cannot adopt a meaning inconsistent with a fundamental feature of legislation [if s3 isn’t appropriate, they move onto s4]

S3 is a legal imposition on the judges

Question 30

Declarations of incompatibility under HRA s4

Answer 30

S4 - (2) “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility”
[…]
(6) “A declaration under this section: (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given;”

Question 31

Who can make a declaration of incompatibility?

Answer 31

A statement of declaration isn’t a strike down power (they are claiming it is incompatible), and the validity of the legislation is not changed

This power to make declarations of incompatibility is available to the Supreme Court, and the Judicial Committee of the Privy Council

In Scotland, declarations can also be made by the High Court of Justiciary sitting otherwise than as a trial court and the Court of Session (the courts which have the power to claim there is an s4 incompatibility)

In England and Wales or Northern Ireland, declarations can be made by the High Court or the Court of Appeal

Question 32

Important Declaration of Incompatibility cases

Answer 32

Ghaidan v Godin-Mendoza [2004]: Lord Steyn argued that it was necessary “to emphasis that interpretation under section 3(1) is the prime remedial remedy and that resort to section 4 must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consisted with Convention rights”

Smith v Scott 2007: The appellant argued that the law which does not allow prisoners to vote violated the Article 3 of Protocol 1 ECHR. The CoS could not rely on HRA s3 as it would depart too significantly from a fundamental feature of the legislation, so the legislation was found to be incompatible with the ECHR

Question 33

What happens after a declaration of incompatibility (under s4) has been made?

Answer 33

HRA s10: “If a Minister of the Crown considers that there are compelling reasons for proceeding under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility”

Under s10 HRA, it passes from the courts to the executive and parliament. A minister who agrees may make amendments to the legislation as they see fit (this is a Henry VIII power). The minister has to believe there is a compelling reason to alter but, he has the power to do so under s8

Question 34

Duties of public authorities under HRA 1998, s6

Answer 34

s6 - it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This includes Courts and Tribunals

Question 35

What is a public authority?

Answer 35

The case of Aston Cantlow and Wilmcote v Wallbank [2004] 1 AC 546, Lord Nicholls at [7] and [11] identified two types of public authority:
Core Public Authority: “a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the European Convention on Human Rights. Hence, under the Human Rights Act a body of this nature is required to act compatibly with Convention rights in everything it does”. What we generally understand is that these are public authorities in the way we would generally understand. These authorities are under an obligation to incorporate HRA in everything that they do

Hybrid Public Authority: a body “exercising both public functions and non-public functions […] A hybrid authority is not a public authority in respect of an act of a private nature”. There may be companies that are acting under contract to the government, and they carry out functions which relate to the public (they must act compatibly with HRA). If it is under a public nature, these aren’t covered by the HRA and they have no convention obligations

Question 36

Convention rights primarily have a ‘vertical effect’ in that they involve a dispute between a citizen and the state, but do they also have a horizontal effect? Can the HRA 1998 apply to disputes between private parties?

Answer 36

Whenever the relationship between parties is governed by statute, the court must apply the statute in such a way as to secure compliance with relevant Convention rights. [not every private relationship is governed by statute but, if the relationship is governed by statute, the HRA applies]

Question 37

What if the relationship between parties is not governed by statute, but it is governed by common law?

Answer 37

For Wade, courts and tribunals are considered public authorities under HRA 1998, s6, so they should decide all cases in accordance with Convention rights e.g., Venables v News Group Newspapers [2001]

This means that:
(i) While Convention Rights may not be directly enforced by one party against another, they may still be relied on in an established cause of action to extend the rights of either party

A good example of that in practice is the case of Campbell v MGN Ltd (2004) at [132] per Baroness Hale:

(i) HRA 1998 does not create any new cause of action between private persons. Courts are not required to invent wholly new law
(ii) If there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights

Question 38

What is the significance of HRA s19?

Answer 38

“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill

(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nonetheless wishes the House to proceed with the Bill”

s19(b) has been used quite rarely, and an example of this is the Communications Bill 2003

Question 39

HRA 1998 s16; Derogations

Answer 39

“If it has not already been withdrawn by the United Kingdom, a designated derogation ceases to have effect for the purposes of this Act at the end of the period of five years beginning with the date on which the order designating it was made”

Where a High Contracting Party to the Convention, a member state effectively, in a national emergency of a very serious nature, wishes to derogate from its obligations of giving effect to Convention rights. A derogation can only last for a period of 5 years (in the UK)