‘the Hra 1998 Is Being Used for Purposes Not Originally Intended by Its Proponents.’

Common Law Reasoning and Institutions

Essay Title:
‘The HRA 1998 is being used for purposes not originally intended by its proponents.’ Discuss.

By Taylorc

Integration of the HRA 1998 into the United Kingdom’s domestic laws has been considered by most a stepping stone in the right direction for citizens, because it allows for greater application of the European Convention on Human Rights (ECHR). Prior to inclusion of these profound laws, courts in the United Kingdom was bound by the belief that when conflicts arose between the ECHR and domestic law, the UK Laws must prevail, R v Secretary of Home Dept ex parte Thakrar & R. v Secretary of Home Dept. ex parte Brind. The Human Rights Act 1998 came into full effect on October 2, 2000; the Act incorporated the European Convention on Human Rights into the domestic laws of the United Kingdom. The desire of the Government in incorporating this law was to allow cases that raise Conventional issues to be dealt with domestically by the UK courts. The law in whole was designed to help provide and build a “culture of rights and responsibilities across the United Kingdom.” Quoting Rt. Hon. Jack Straw MP, Home Secretary. The passing of this Act into UK domestic laws allows the UK courts to use the agreed Convention in any legal proceedings that warrants its use, thus allowing the courts to incorporate decisions into its rulings using the Convention as its guide. It further allows UK citizens to assert their rights under the Convention in UK courts and Tribunals. Yet the courts under this Act must interpret domestic laws and give effect in a way that allows for compatibility with Convention rights. The Act works in two main ways, (1) on the courts and (2) on public authorities. Firstly, courts and tribunals must, “so far as possible, interpret legislation compatibly with the Convention rights.” (The Human Rights Act 1998.) Where it is not possible to interpret primary legislation making it compatibly, then that legislation remains in force but the court may issue a declaration of incompatibility, in R v A (2001) Lord Steyn could have but did not declare the Youth Justice Criminal Evidence Act 1999 as incompatible (as per s. 4 HRA) but proceeded to declare s. 41 of the Act as “too widely drafted and had made excessive inroads into the rights for a fair trial (Article 6 ECHR)” if legislation was considered incompatible, then only Parliament can decide whether to amend the legislation to make it compatible. Secondly, it requires public authorities to act compatibly with Convention rights, unless primary legislation makes that impossible. (A public authority is defined in part as any courts and tribunals, or anyone who is considered to be performing functions of a public nature.) The effect that the Act has on Public bodies can be seen in Section 6 of the Act which provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Consequently, legislation is to be given effect and public authorities will be obliged to act in a way which is compatible with an individual’s right, and respect for their private life. If individuals believe that their rights have been so abridged by a public authority a challenge can be made through the Courts in an attempt to remedy these failings. R v Aston University Senate, ex p. Roffey 1969; McInnes v Onslow-Fane 1978. The HRA also provides that “a court or tribunal in determining a decision which has arisen in connection with a Convention right must take into account the [Strasbourg jurisprudence]”.
To help us answer the question, we need to understand the original purpose of the HRA Act 1998. The law in whole was designed to help provide and build a “culture of rights and responsibilities across the United Kingdom.” Quoting Rt. Hon. Jack Straw MP, Home Secretary. The Convention itself is a treaty and it provides for a remedy between individuals and the state and has never been considered to apply between individuals. Consequently, when an individual felt that his rights were being impinged by the state, they were able to file action against the state; this action gave rise to what is known as a “vertical effect” this is an action between the state and an individual. Through the development of this Act, and through precedent, further unforeseen actions arose where individual were allowed to file actions against another individual, this gave rise to an effect now known as a “horizontal effect.” Whether the Act allows for the application of “vertical” or “horizontal” effect the courts through precedents has tried to give priority to Convention rights and this has been evident through a numerous amount of case law that shows how careful the courts have applied the HRA in its desire to protecting the rights of all individuals. R. v Ministry of Defence ex parte Smith & R. v Secretary Home Dept ex parte Daly
The HRA Act 1998 afforded all human beings protected and rights under law, it provided for basic enforceable rights to be recognized by the courts. Firstly, these rights must be seen as being inherent, inalienable and universal. Other basic rights also includes, the right to life, the right to liberty, the right not to be subjected to torture, the right to a fair hearing in the courts, the right to protections for privacy, the right to free expression, the right to be protected against discrimination, the right to be free from slavery, and forced or compulsory labour, the right not to be punished without law, the right to respect for private and family life, home and correspondence, the right to freedom of thought, conscience and religion, the right to freedom of association and assembly, and the list goes on. (Justice, A Guide to the Human Rights Act 1998 Questions and Answers December 2000.) Is the HRA 1998 being used for purposes not originally intended by its proponents? Well, in a speech given by RT Hon. Lady Justice Arden DBE Member of the Court of Appeals in England and Wales, the topic “Building a Better Society” at the Justice 10th Annual Rights Law Conference, Building on 10 years of the Human Rights Act October 21, 2008, Lady Justice Arden, made a declaration that “The Human Rights Act 1998 has made a profound difference to the work of the courts in the years since its commencement, and I have no doubt that it will continue to affect what we do and how we think in the years ahead. The Human Rights Act has focused attention at the first stage on the individual and the onus has changed from the individual to the state to justify any interference with his human rights in those cases where some interference is permitted. That is quite different from the position that prevailed before the Human Rights Act, and still prevails in judicial review where human rights are not engaged.” Lady Justice Arden further declared, “The Human Rights Act has changed our understanding of democracy. We can now clearly see that democracy is also a complex interplay between majority and minority rights. Lawyers could usefully consider what it means to be “necessary in a democratic society”. There are important consequences from this, including the following: The Human Rights Act 1998 has changed the way we think about democracy. We need to think about the institutions of our democracy to ensure that they are appropriate to the needs of the human rights era. We need to be mindful of the experience in other countries and learn what we can from them. Human rights jurisprudence will more and more infuse the common law and be one of the major ways in which it is developed in this jurisdiction in the next ten years.”
Who or what is a proponent? The free dictionary by Farlex http://www.thefreedictionary.com/Proponents describes proponents as “a person who argues in favour of something” as a result one can argue that the HRA 1998 is being used for purposes originally intended by its proponents. Although highly debatable, the courts as upholder of the laws, and who are also considered guardians of the rights of individuals, can be seen as a proponent of the Act, and by extension the main body responsible for ensuring that no one goes beyond the original scope of the Act and its intensions, by its original proponents. In Bail and the Human Rights Act 1998 Part I [2001] EWLC 269(1) (20 June 2001) ([2001] EWLC 269(1); From The Law Commission (BAILII) (In this report The Law Commission, consider the impact of the HRA on the law governing decisions taken by the police and the courts to grant or refuse bail.) The Convention’s and its listed rights can be seen as a living text, or a living document, these text can be interpreted broadly and vigorously, considering the changing world we now live in; our younger and in part our older generation have adopted a liberal approach to life, but a conservative approach towards an individual’s privacy. The Convention is now to be seen in a changing and vastly different society, from the intentions of the first drafters of the Law several years ago. If one were to view the opinions of the European Court of Human Rights they have adopted the approach that “the rights in the Convention must be interpreted in a way that reflects this developing society.” It is quite apparent that the HRA 1998 has evolved and adapted to a changing society, for example, consider the court’s approach to same sex couples, and surviving partners, in Maruko v Versorgungsanstalt der Deutschen Buhnen (C-267/06) [2008] All E.R. (EC) 977; European Court of Justice (Grand Chamber), 1 April 2008. As society has changed, so the courts have adapted and seek to protect the rights for such individuals under the Convention.
Truly, one can argue that the HRA 1998 is being used for purposes not originally intended by its proponents, but is it really? Or has case law only developed what was truly intended? To limit the proponent’s intentions into a proverbial box may seem unjust, or to expand the proponent’s intentions to one of limitless expectations or unimaginable foresight may be extreme. But it seems that in any developing society one can expect that opponents against the law would argue that it has gone beyond the scope of the original intentions, and advocate its removal, for example when the bill was being discussed or argued in the halls of Parliament, Human Rights Act 1998 (Meaning of Public Authority) Oral Answers to Questions — Health; House of Commons debates, 9 January 2007, All Commons debates on 9 Jan 2007, John Redwood (Policy Group On Economic Competitiveness, Conservative Party; Wokingham, Conservative) stated “I oppose the Bill, which illustrates the trouble into which a well intended Government get when they decide to rely on the courts and human rights legislation instead of Parliament and representative democracy.” He further stated “Surely the hon. Member for Hendon must accept that the matter illustrates only too well that reliance on the law and the human rights panoply does not work and that we need to get a vibrant democracy again so that, in each council chamber as well as in this Chamber, we can get justice for people and action from Ministers and ruling councillor groups who otherwise are not doing their job.” In contrast RT Hon. Lady Justice Arden DBE an avid advocate in support stated: “The Human Rights Act 1998 has made a profound difference to the work of the courts in the years since its commencement, and I have no doubt that it will continue to affect what we do and how we think in the years ahead”
It is quite evident, that the HRA Act 1998 has evolved and is being used for purposes originally intended by its proponents, that is, to help provide and build a “culture of rights and responsibilities across the United Kingdom.” Quoting Rt. Hon. Jack Straw MP, Home Secretary.

Bibliography

Cases and Acts:

➢ R v Secretary of Home Dept ex parte Thakrar & R. v Secretary of Home Dept. ex parte Brind ➢ R v A (2001) ➢ R v Aston University Senate, ex p. Roffey 1969; McInnes v Onslow-Fane 1978. ➢ R. v Ministry of Defence ex parte Smith & R. v Secretary Home Dept ex parte Daly ➢ Maruko v Versorgungsanstalt der Deutschen Buhnen (C-267/06) [2008] All E.R. (EC) 977; European Court of Justice (Grand Chamber), 1 April 2008.

➢ Youth Justice Criminal Evidence Act 1999

Annual Conference:

➢ Lady Justice Arden DBE Member of the Court of Appeals in England and Wales, the topic “Building a Better Society” at the Justice 10th Annual Rights Law Conference, Building on 10 years of the Human Rights Act October 21, 2008,

Journal:

➢ Bail and the Human Rights Act 1998 Part I [2001] EWLC 269(1) (20 June 2001) ([2001] EWLC 269(1); From The Law Commission (BAILII)

➢ Justice, A Guide to the Human Rights Act 1998 Questions and Answers December 2000. ➢ Rt. Hon. Jack Straw MP, Home Secretary

Debate:

➢ Human Rights Act 1998 (Meaning of Public Authority) Oral Answers to Questions — Health; House of Commons debates, 9 January 2007, All Commons debates on 9 Jan 2007, John Redwood

Website: ➢ http://www.thefreedictionary.com/Proponents

Bibliography: ➢ R v A (2001) ➢ R v Aston University Senate, ex p ➢ Lady Justice Arden DBE Member of the Court of Appeals in England and Wales, the topic “Building a Better Society” at the Justice 10th Annual Rights Law Conference, Building on 10 years of the Human Rights Act October 21, 2008, Journal: ➢ Bail and the Human Rights Act 1998 Part I [2001] EWLC 269(1) (20 June 2001) ([2001] EWLC 269(1); From The Law Commission (BAILII) ➢ Justice, A Guide to the Human Rights Act 1998 Questions and Answers December 2000.