Human Rights Act essay – Steve Norton 2012/13

‘The [Human Rights] Act was specifically structured to allow the courts to uphold rights while also retaining parliamentary authority. Behind the constructions of ss3 and 4 was a carefully thought out constitutional arrangement that sought to inject principles of parliamentary accountability and transparency into judicial proceedings...’ Klug, F. ‘Judicial Deference under the Human Rights Act 1998’ (2003) European Human Rights Law Review 125 at 130

Consider the above statement and analyse the extent to which the introduction of the Human Rights Act has altered the balance of power, between the three branches of government, in favour of the judiciary.

The Human Rights Act 1998 (HRA) is changing the existing dynamics at work and relationship between the legislature, executive and judiciary. The HRA incorporates provisions contained within the Convention for the Protection of Human Rights, more commonly known as the European Convention on Human Rights (ECHR) into our domestic law. The HRA can be described as a `constitutional’ statute as it does introduce a new constitutional element and concept into UK law which could be described as slightly alien to existing constitutional documents or influences. Previous documents of importance in the UK constitution were the Magna Carta in 1214 which was predominantly concerned with redistributing power between the King and his nobles at the time, and the Bill of Rights in 1689which shifted the balance of power from the supreme divine right of the King at the time and away from a feudal system, to a sovereign Parliament (representing the interests of the new capitalist class). The European Communities Act 1972could also be added as a statute of far reaching effect on the UK constitution, which reduced the omnipotence of Parliament as the supreme legislating body. The difference, as pointed out by Jenny Watson and Mitchell Woolf[1], being that the HRA is more concerned with the protection of the “fundamental rights of all individuals within the UK” , rather than the redistribution of power to a more representative group in society. How then has then has this new and foreign concept been applied in UK courts?

The ECHR was drafted after World War Two with the aim of conferring enforceable rights on individuals against sovereign countries. The UK ratified the ECHR in 1951 but were not prepared to adopt a domestic process by incorporating into domestic law. The New Labour government elected in 1997 following their government White Paper, Rights Brought Home; The Human Rights Bill enacted the Human Rights Act 1998 which came into force on 2nd October 2000. Anthony Lester describes the HRA 1998 as exerting “a magnetic force over the entire political and legal system…..” and“a measure of fundamental constitutional importance….”.[2]Its important to stress as it makes clear in one of Lester’s footnotes[3] that the ECHR is an international Treaty and not part of domestic law, and the HRA creates domestic rights, not international rights in the same terms as set out in the Convention. The source of these rights is through the statute rather than the Convention. The rights are against specific public authorities not the UK as a state. The UK domestic courts will construe their meaning and application not Strasburg.

How then does the HRA apply to UK legislation and give `further effect’ to the Convention? Webley and Samuels provide a succinct summary –

“The basic features of the Act are that the courts in the UK are required to take the Act (and therefore Convention Rights) into account…..They are required to use techniques of Statutory interpretation so as to render UK law compatible with Convention rights, unless this is not possible without a strained interpretation of UK primary legislation…”[4]

Section 3(1) of the HRA provides that Acts of Parliament and subordinate legislation must be read so far as possible as to be compatible with Convention rights, with the qualification that this does not affect the validity, operation or enforcement of pre-existing legislation. Where the courts feel primary legislation is incompatible with Convention rights, section 4 of the Act enables the higher courts to issue a `declaration of incompatibility’.

An example of the application of ss.3 is found in H v Mental Health Review Tribunal N&E London Region[5]. An issue arose around the burden of proof on patients seeking release in applications to Mental Health Review Tribunals which culminated in a declaration of incompatibility where sections 72 and 73 of the Mental Health Act 1983 being found incompatible with the ECHR. resulting in a declaration that these sections of the Mental Health Act 1983 should be amended to make the legislation compatible via a remedial order rewording the relevant sections.

InS and Marper v United Kingdom [6]where blanket retention of DNA from individuals who had not been convicted of an offence under s.64(1A) of the Police and Criminal Evidence Act 1984 1984, was seen as a disproportionate interference with respect for private life under Article 8 of the HRA.

Much of the academic debate has concentrated on the how the HRA can be applied within the context of the British constitutional structure. One of the prevailing theories is the idea of a `constitutional dialogue’ between the courts, legislature and executive. Tom Hickman summarises Francesca Klug’s advocacy of this theory suggesting that the HRA “is a “third wave” bill of rights which is not premised on the assumption that the judiciary is not the protector of human rights.”He goes on to say “Instead, she argues that it is intended to establish a dialogue between the courts, Parliament and the executive”.[7] Thus Hickman in summing up this position, sees the role of the courts being able the raise arguments of fundamental principle, but wider policy issues more likely to be resolved through the democratic organs not the courts.

Hickman himself relied heavily on the case of Re S[8]in his conclusions. This case dealt with an issue around a legislative scheme protecting vulnerable children, and possible violation of family rights under Article 8 of the ECHR for his particular theoretical analysis. In this case the House of Lords did not issue a S.4 declaration of statutory incompatibility as this was not seen as a satisfactory way forward. Instead, the House of Lords stressed in strong terms the need for further legislation, and within a year amendments were made to the Children Act 1989tightening up the Local Authority’s role in reviewing care plans and appointment of a reviewing officer to monitor their performance and ability to refer matters to the Children and Family Court Advisory and Support Service. Hickman’s own assessment was that a dialogue was at the heart of the HRA 1998, but the use of declarations of incompatibility or realigning the balance in place based on the separation of powers insufficiently explains the changes brought about since the HRA 1998. He argues that the various branches do not “merely counteract protectively”but also“interact productively”. The form of constitutionalism underpinning the HRA in his view are found in a middle ground between the theory of absolute rights (or incorporation to be discussed next) and dialogic theories. Thus it is based on a collaborative exercise between the various branches when determining the issue of rights.

The incorporatist view is a school of thought that sees human rights as being based on a higher Convention law beyond the Parliamentary system and politics and forming a legalism, where s.3 enables legislation to be compatible with Convention rights. Hickman quotes Ex p. Simmwhere Lord Hoffman stated that this doctrine is the means by which the courts at common law can “apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by constitutional document”[9]. This would be more difficult in the British constitutional conventions as the legislature and executive still possess more or less unlimited power based on supremacy and sovereignty. The rationale or philosophy behind the introduction of the HRA 1998 was described as in effect being through “non-corporation” with the judges in Britain being able “to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe”.[10] Danny Nicol discusses the issue of incorporation of Convention rights and the HRA in his paper[11]. He describes the dominant trend of judicial opinion favouring theincorporatist rather than what he describes as `third wave’ interpretation of the HRA. Cases such as R.v.A (No.2)[12]balancing the interests of alleged rapists and their alleged victims was seen as a matter of fundamental rights, whereas in Alconbury[13] (on planning matters), decisions of this kind are more in keeping with the “everyday meat-and-drink of contested politics”. He concludes that although the dominate trend (writing in 2002) be saw as incorporatist, the balance of power could be subject to reshaping or refining, with an evolving culture of `dialogue’ and ` creative tension’ “between the constitutions judicial and political actors”.

Incorporation fails to fully explain the nature and effect of the HRA 1998 upon the British parliamentary constitutional system. Convention rights as such are not, as Munro points out, `higher law’ as in other government systems where there is a higher constitutional court to strike down incompatible laws, but instead “an accommodation of different approaches”[14]between the sovereignty of Parliament and the judiciary protecting `civil rights’.

Francesca Klug[15] felt that the scheme of the Act itself was sufficient under ss.3 and 4 where applied properly, then there is no need for any further doctrine of judicial deference to the legislature. She concluded that where a Convention right is at stake there should be no legislation where the courts exclude themselves from declaring incompatible due to the subject matter considered to fall more within the responsibility of Parliamentary than the judiciary. She contrasted and compared the Canadian Charter of Rights of 1982 and the 1991 New Zealand Bill of Rights. The Canadian Charter is an example of judicial entrenchment with a “notwithstanding clause” attached allowing the legislature to explicitly pass statutes which bypass the Canadian Charter. The New Zealand Bill of Rights is more akin to the British Parliamentary system where legislation is paramount. Klug makes the point that the HRA 1998 in particular ss.3 and 4 were “deliberately and carefully crafted to differ from both of these models”with no further need for any doctrine of judicial deference to the legislature, or legislation. The British model was a middle way between judicial entrenchment (Canadian) and democratic deference (New Zealand).

The Human Rights Act has had a fundamental influence on the British constitutional system and continues to do so. The judiciary now has a role in ensuring legislation is compatible with the doctrine of fundamental rights. There is a great deal of academic discourse on how the methodology of how the Human Rights Act uses ss. 3 and 4 to ensure legislation is compatible with Convention rights, and declarations of incompatibility, and how this has been applied in the British courts. The idea of a constitutional dialogue appears to fit the British parliamentary model allowing an element of flexibility using the scheme of the Act to make changes to legislation tobring it in line with Convention rights, or declare incompatible, but not affect the operation or enforcement of the enactments. This may be a difficult balancing act especially with the media hostility and misinformation about human rights generally. The Human Rights Act has introduced a peculiarly British (or English) approach to introducing a statutory scheme that gives greater priority to the whole new concept of fundamental human rights, whilst attempting to retain elements of parliamentary sovereignty. Dicey’s interpretation of the principle of Parliamentary sovereigntythat Parliament, under the English constitution, retains the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament[16], has been affected European influences. The European Communities Act 1972, established the superiority of European Union legislation over domestic legislation. In1998 the Human Rights Act introduced another conceptual element around fundamental human rights. These two landmark pieces of legislation extended the role of the judiciary in interpreting domestic legislation in a more purposive way to give greater effect to other external sources of law. Dicey himself acknowledged that although Parliament utters its will as lawgiver, legislation is then subject to the interpretation placed on it by the judges of the land.[17]An Act of Parliament has provided the judiciary with tools to interpret legislation new and old so as to be compatible with the Convention and it is playing its constitutional interpretive role, rather than further shifts in the balance of power.

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[1] Watson J, Woolf W – Human Rights Act Toolkit – Legal Action Group (LAG) - 2003

[2] Lester A, Chapter 3 (P.71) – Human Rights and the British Constitution –The Changing Constitution 7th ed. edited by Jowell J & Oliver D. - Oxford University Press - 2011

[3] Ibid (P.77) – Re McKerr [2004] UKHL 12,[2004] 1 WLR 807 (HL) at 63, per Lord Hoffman.

[4]Webley,W & Samuels H – Chapter 9 (P.265) - Public Law: Text, Cases and Materials - 2nd ed. Oxford University Press – 2012 – Chapter 10 - P.356

[5] [2001] EWCA Civ 415

[6](Application Nos 30562/04 & 30566/04) ECtHR Judgment of December 4 2008

[7] Hickman, T – Constitutional dialogue, constitutional theories and the Human Rights Act 1998 (2002)

[8]Ibid [2002]Re S (Minors) Care Order: Implementation of Care Plan [2002] UKHL 10 2 AC 291

[9]R v Secretary of State for the Home Department Ex P Simms [2000] 2 AC 115 at 131

[10] Cm 3782, paras 1.14-1.16

[11]Nicol, D – Are Convention rights a no-go zone for Parliament? (2002) – Public law

[12]R.v.A [2001] 2 W.L.R 1546

[13] R (on the application of Alconbury Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] 2 W.L.R 1389

[14] Munro, C R. Studies in Constitutional Law – 2nded. Oxford University Press (2005)

[15] Klug, F – Judicial deference under the Human Rights Act 1998 (2003) – European Human Rights Law Review

[16]Introduction to the Study of the Law of the Constitution [Eighth Edition, 1915] (LibertyClassics, 1982), p. 116.

[17] Ibid (p.273)