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7 The Human Rights Act 1998: Bringing Rights Home
Published online by Cambridge University Press: 27 October 2017
Extract
The Labour government has quickly acted on its election promise to introduce a bill of rights into domestic law. The Human Rights Act 1998 partially incorporates the European Convention on Human Rights (ECHR) into United Kingdom law. This legislation is part of a wider constitutional package including devolved government for Scotland and Wales and reform of the House of Lords. The government’s programme is intended to modernise and indeed transform the British constitutional structure. According to the government, the Human Rights Act will bring rights home. Individuals will be able to argue for their Convention rights in the United Kingdom’s own courts and tribunals and judges will be able to adjudicate directly on Convention issues. All new laws will be carefully scrutinised to ensure compatibility with Convention rights.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 1998
References
1 The White Paper on incorporation of the ECHR was entitled “Rights Brought Home: The Human Rights Bill” CM 3782 (October 1997). Hereafter “Rights Brought Home”.
2 HL Deb Vol 582, col 1228 (3 November, 1998).
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6 Silver v. United Kingdom (1983) 5 EHRR 347; Weeks v. United Kingdom (1987) 10 EHRR 293; Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 EHRR 666.
7 Chahal v. UK (1997) 23 EHRR 413.
8 The Sunday Times v. United Kingdom (1979) 12 EHRR 245.
9 Dudgeon v. United Kingdom (1981) 4 EHRR 149.
10 The European Social Charter (Council of Europe) came into force in 1965 and was intended to complement the ECHR by providing for social rights such as rights to work, healthcare, and additional rights to protection of the family, particularly for mothers and children. Unlike the ECHR, the Charter does not confer enforceable rights on individuals and it has not been particularly influential in the development of law and policy in the United Kingdom. In 1991 an Amending Protocol was adopted which strengthened the supervisory system.
11 See Palmer, S. “Critical Perspectives on Women’s Rights: The European Convention on Human Rights and Fundamental Freedoms” in Bottomley, A. (ed.) Feminist Perspectives on the Foundational Subjects of Law (Cavendish, 1996) 223 Google Scholar.
12 The judges must take into account the decisions of the European Commission and Court of Human Rights. See section 2 Human Rights Act. Fredman, S. comments that “little attempt has been made to fashion democratic constraints for the judiciary.” “Bringing Rights Home” 114 (1998) LQR 540 Google Scholar.
13 See Palmer above n 11 at 239–240.
14 The United Kingdom has entered a reservation to Article 2 of Protocol 1. The government intends to ratify Protocol 7, but must first legislate to remove inconsistencies in existing law. See “Rights Brought Home” above n 1 at para 4.15.
15 See HL Deb Vol 583 cols 466–481, (18 November, 1997) concerning the exclusion of Article 13.
16 Sections 3–5 Human Rights Act.
17 In contrast to EU law, there is no concept of direct effect in the Human Rights Act.
18 The House of Lords in its judicial capacity would be considered a “public authority” for the purposes of section 6 (3). See section 6 (4) Human Rights Act.
19 HC Deb Vol 314, col 409 (17 June, 1998).
20 Ibid. col 409–411.
21 Ibid. col 410.
22 Ibid col 406.
23 There will be no list of public authorities. See “Rights Brought Home” above n 1 at para. 2.2.
24 HC Deb Vol 314 cols 408–410 (17 June, 1998).
25 For a more detailed discussion of these issues see Bamforth, N. “Public Authorities, Private Bodies and the Human Rights Act 1998” 58 (1999) CLJ 159 Google Scholar.
26 See e.g. R. v. Panel on Take-overs and Mergers, ex p. Datafin [1987] QB 815; R. v. Chief Rabbi of the United Hebrew Congregation, ex p. Wachmann [1992] 1 W.L.R. 1036; R. v. Disciplinary Committee of the Jockey Club, ex p. Massingberd-Mundy [1993] 2 All E.R. 207; R. v. Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 W.L.R. 909; R. v. Football Association, ex p. Football League [1993] 2 All E.R. 833.
27 R. v. East Berkshire Health Authority, ex parte Walsh [1985] Q. B. 152. The Press Complaints Commission has not been considered public for the purposes of judicial review but it will be a “public authority” for the purposes of the Human Rights Act.
28 See Scuderi v. Italy (1993) A 265–A (civil servant) and Darnell v. United Kingdom (1993) A 272 (health service employee). Duffy P. Grosz, S. and Beatson, J. A Guide to the Human Rights Act 1998 (forthcoming 1999).
29 See R. v. Fernhill Manor School, ex p. brown (1993) 5 Admin. L. R. 159, 175.
30 See Bamforth above n 25 at 162. Y v. United Kingdom (1992) A 247–A; Costello-Roberts v. United Kingdom (1993) 19 EHRR 112. Another divergence between domestic law and the Convention may arise where the Strasbourg jurisprudence has imposed a positive obligation upon the member states to secure certain Convention rights. See further below text notes 43 to 46.
31 Compare also the jurisprudence of the European Court of Justice e.g. case C–188/89 Foster v. British Gas plc [1990] ECR I–3313.
32 HL Deb Vol 585, col 840 (5 February, 1998) (Lord Irvine of Lairg).
33 Wade, H.R.W. “The United Kingdom’s Bill of Rights” in Constitutional Reform in the United Kingdom: Practice and Principles (Cambridge Centre for Public Law, Hart Publishing, 1998)Google Scholar. See also Hunt, M. “The ‘Horizontal Effect’ of the Human Rights Act” [1998] PL 423 Google Scholar and Bamforth above n 25.
34 The limitations in R. v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 have been swept aside.
35 HC Deb Vol 313 col 422 (3 June, 1998). It may be helpful to draw an analogy with EU law. In Case C–168/95 Criminal Proceedings against Luciano Arcaro [1996] ECR I–4705 it was held that where a Directive covers the same field as domestic law, a court should not distort the meaning of the legislation.
36 See e.g. Derbyshire County Council v. Times Newspapers Ltd. [1992] QB 770 (Court of Appeal). The House of Lords came to the same conclusion, although their Lordships did not consider that it was necessary to base their judgement on the Convention. See also AG v. Guardian Newspapers [1987] 1 WLR 1248, (per Lord Templeman) 1296 et seq; Middlebrook Mushrooms v. TGWU [1993] ICR 612; Rantzen v. MGN [1993] 4 All ER 975.
37 Section 6(3) appears to go further in ensuring horizontal effect than either the Canadian or South African approaches. See Hunt above n 33 at 441.
38 HL Deb Vol 583 col 783 (24 November, 1997). Compare what he said in HL Deb Vol 585, col 840 (5 February, 1998).
39 HL Deb Vol 583 col 785 (24 November, 1997).
40 Ibid.
41 See e.g. Observer and Guardian v. United Kingdom 14 (1992) EHRR 153; Jersild v. Denmark 19 (1995) EHRR 1; Goodwin v. United Kingdom 22 (1996) EHRR 123.
42 The press feared indirect control through the Press Complaints Commission which is a public authority under the Human Rights Act. See also section 13 Human Rights Act which was included to assuage fears that the freedom of the Church may be eroded.
43 The Act does not impose a duty on domestic courts to follow the Strasbourg jurisprudence but the individual petition to Strasbourg remains.
44 (1979) 2 EHRR 330. Harris, D.J., O’Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights (London, Butterworths, 1995) 19–22 Google Scholar.
45 See also X & Y v. Netherlands, A 91 para 23 (1985) (state has an obligation to provide legal protection against sexual abuse under article 8) and Guerra v. Italy 4 BHRC 63 (1998) (toxic emissions from a chemical factory, positive obligation on the state to ensure effective respect for private and family life under Article 8); Mrs W v. United Kingdom (1983) 32 D & R 190 and McCann v. United Kingdom 21 (1996) EHRR 97 (right to life in Article 2 gives rise to positive obligation upon the state); A v. United Kingdom 5 BHRC 137 (1998) (violation of Article 3 for failing to provide adequate legal safeguards for children chastised by their parents); Plattform ‘Artzte fur das Leben’ v. Austria 13 (1988) EHRR 204 (positive duty on the state to protect demonstrators from violent disturbances under Article 11); Young, James and Webster v. United Kingdom 4 (1981) EHRR 38 (violation of Article 11 for allowing “closed shop agreements” whereby employers were entitled to dismiss employees who refused to join a trade union).
46 See Duffy, Grosz and Beatson above n 28.
47 Wade above n 33 at 62–4.
48 HL Deb Vol 583, col. 811 (24 November, 1997).
49 This is the conclusion reached by Wade above n 33 at 63.
50 Ewing, K. “The Human Rights Act and Labour Law” 27 (1998) ILJ 275, 286CrossRefGoogle Scholar.
51 Ibid at 285.
52 See R v. HM Inspector of Pollution, ex parte Greenpeace Ltd (No. 2) [1994] 4 All ER 329; R v. Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386. C/f an application begun by writ, Barrs v. Bethell [1982] Ch. 294.
53 Spencer, S. and Bynoe, I. A Human Rights Commission: The Options for Britain and Northern Ireland (Institute of Public Policy Research, 1998)Google Scholar.
54 Ewing, K. and Gearty, C. Freedom Under Thatcher (1990).
55 See Fredman above n 12 at 538.
56 See e.g. “Rights Brought Home” above n 1 at para. 2.13.
57 Dicey, , The Law of the Constitution, 10th ed. (Basingstoke, Macmillan, 1965) at 39 Google Scholar.
58 R v. Secretary of State for Transport, ex p. Factortame (No. 2) [1991] 1 A.C. 603; R v. Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 A.C. 1. For discussion see Wade, H.R.W. “Sovereignty: Revolution of Evolution” 112 (1996) LQR 568 Google Scholar; Eekelaar, J. “Parliamentary Sovereignty—A Comment” 113 (1997) LQR. 185 Google Scholar; Allan, T.R.S. “Parliamentary Sovereignty: Law, Politics and Revolution” 133 (1997) LQR 443 Google Scholar.
59 Section 3 Human Rights Act.
60 Section 4 Human Rights Act, 1998. It is widely expected that a declaration will be needed in only a few cases. See “Opening Address” by the Lord Chancellor in Markesinis, B. (ed) The Impact of the Human Rights Bill on English Law (OUP, 1998), 10 Google Scholar.
61 The validity of secondary legislation may be unaffected where primary legislation makes it impossible to remove the incompatibility. A declaration of incompatibility is not binding on the parties to the proceedings in which it is made. Section 4(6), Human Rights Act.
62 Section 10 Human Rights Act.
63 HC Deb vol 317, col 1301 (21 October, 1998) (Mr J Straw).
64 It may be a violation of Article 6 ECHR to allow human rights issues to be decided by discretionary executive order. See Wade above n 33 at 67.
65 Section 10 Human Rights Act. Note also sections 11 and 12 Human Rights Act.
66 HL Deb vol 583, col 1141 (27 November, 1997).
67 Article 9 Bill of Rights 1688; British Railways Board v. Pickin [1974] A.C. 765; Edinburgh and Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710.
68 For a comparative view of New Zealand and the United Kingdom, see Taggart, M. “Tugging on Superman’s Cape: Lessons from Experience with the New Zealand Bill of Rights Act” [1998] PL 266 Google Scholar. See also Canadian Bill of Rights, section 3.
69 [1994] 2 NZLR 451.
70 Ibid at 457.
71 Ibid at 456 and Bamforth, N. “Parliamentary Sovereignty and the Human Rights Act [1998] PL 572, 581.
72 See statements of the Home Secretary. HC Deb Vol 313, col 420 (June 3,1998).
73 Bamforth above n 71 at 572.
74 Contributions to this debate include: Oliver, D. “Is the Ultra Vires Rule the Basis of Judicial Review?” [1987] PL 543 Google Scholar; Forsyth, C. “Of Fig Leaves and Fairy Tales: the Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review” 55 (1996) CLJ 122 CrossRefGoogle Scholar; Craig, P. “Ultra Vires and the Foundations of Judicial Review” 57 (1998) CLJ 63 CrossRefGoogle Scholar; Lord Woolf M.R., “Droit Public-English Style” [1995] PL; SirLaws, J. “Law and Democracy” [1995] PL 72 Google Scholar; Irvine, Lord of Lairg, L.C., “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” PL [1996] 59 Google Scholar.
75 Lord Woolf M.R. ibid at 69; Sir J. Laws ibid at 84–8.
76 Note article 2(2): deprivation of life shall not be a violation of the Convention when “it results from the use of force which is no more than absolutely necessary (a) in defence of any person from unlawful violence; in order to effect a lawful arrest” or stopping the escape of a trainee or for quelling a riot or insurrection.
77 Article 15. There is no violation of right to life when death results from lawful acts of war. The United Kingdom has recently ratified the Sixth Protocol which requires the permanent abolition of the death penalty other than in time of war or imminent threat of war and it has been included in the schedule to the Human Rights Act.
78 See Niemietz v. Germany A, No. 251–B (1993).
79 In Article 8(2) the relevant criteria is whether the State pursued a “legitimate aim”.
80 See e.g. Mahne v. United Kingdom A 82 (1984). Harris, O’Boyle and Warbrick above n 44 at 285–6.
81 Ibid, at 291.
82 See Belgian Linguistics case (no. 2) (1968) 1 EHRR 252.
83 See Sunday Times v. United Kingdom [1979] 2 EHRR 245.
84 See “The Doctrine of the Margin of Appreciation under the European Convention on Human Rights: Its Legitimacy in Theory and Application in Practice” 19 (1998) HRLJ 1.
85 See Handyside v. United Kingdom (1976), 1 EHRR 737.
86 SirLaws, J. “The Limitations of Human Rights” [1998] PL 254 Google Scholar, 258.
87 See e.g. Wingrove v. United Kingdom 24 (1997) EHRR 1.
88 See Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1948] 1 KB 223.
89 [1996] QB 517 (CA).
90 Ibid at 554.
91 [1995] 4 All ER 427 at 447 (DC).
92 Lord Irvine of Lairg, “The Development of Human Rights in Britain” [1998] PL 221, 229.
93 S.2 Human Rights Act.
94 Feldman, D. “The Developing Scope of Article 8 of the European Convention on Human Rights” [1997] EHRLR 265 Google Scholar, 273.
95 See R v. Ministry of Defence ex p. Smith [1996] Q.B. 517. There is an appeal to Strasbourg. C/f the unsuccessful litigation before the European Court of Justice Case C–249/96 Grant v. South-West Trains [1998] ECR 1–621.
96 Sheffield and Horsham v. United Kingdom 5 BHRR 83 (1998).
97 24 (1997) EHRR 39.
98 Wingroue v. United Kingdom 24 (1997) EHRR 1.
99 Browne-Wilkinson, Lord, “The Impact on Judicial Reasoning” in Markesinis, B. (ed.) The Impact of the Human Rights Bill on English Law (OUP, 1998), 21 Google Scholar.
100 See e.g. Airedale NHS Trust v. Bland [1993] AC 789 (duty to provide medical treatment to a patient in persistent vegetative state); R v. R (Rape: Marital exemption) [1992] 1 AC 599 (whether a husband can be criminally liable for raping his wife).
101 See e.g. Derbyshire County Council v. The Times [1993] 1 All ER 1011.