1. “The HRA 1998 provides powerful protection for individuals in many aspects of their lives.” * To what extent is this statement true?
Illustrate your answer by reference to areas of law with which you are familiar.
Before 1998, the United Kingdom did not have a piece of document that specified the basic rights of the English people. However, in the year 1950, the United Kingdom Government signed the European Convention on Human Rights, to protect people’s rights from abuses seen under Hitler’s rule, following the Universal Declaration on Human Rights made by the General Assembly of the United Nations in 1948. Even so, the European Convention on Human Rights had not ratified and incorporated itself into law until 1998 when Parliament enacted the Human Rights Act.
The Human Rights Act 1998 states that when judges are deciding cases in which a question about a Convention right has been brought forward, the court must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights. This means that instead of a conflicting decision by the United Kingdom court, the court must follow decisions of the European Court of Human Rights.
An example of this was seen in the case of Re Medicaments (No 2), Director General of Fair Trading v Proprietary Association of Great Britain (2001). The Court of Appeal had refused to follow the decision of the Supreme Court in the earlier case of R v Gough on grounds that it was slightly different to decisions of the European Court of Human Rights.
Some Convention rights involve the right to life and liberty. Article 2 of the Convention states that the law shall protect everyone’s right to life. It also recognizes that Member States have the right to impose the death penalty to those convicted of particular crimes. Article 3, on the other hand, states that no one shall be tortured or suffer inhumane or degrading treatment or punishment. Moreover, Article 4 declares that slavery is not allowed.
Other examples include Article 5, which sets out that everyone has the right to liberty and that no one shall be deprived of it, except where the law allows arrest. In its subsection, the article provides that ‘everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be speedily decided by a court’.
The Convention rights that cover a person’s right to a fair trial are Article 6 and Article 7. The former states that people have the right to a fair and public hearing within a reasonable time, for both civil and criminal cases. A case that conflicted this Article was the Sander v United Kingdom (2000) case whereby the European Court of Human Rights ruled that a defendant had not a fair trial because a juror was making racist remarks. Article 7, however, states that no one shall be found guilty of a criminal offence if his act was not a crime at the time it was committed. This means that the law may be changed to make acts of the type prohibited criminal offences in future. Nevertheless, it cannot look back to acts that have already been committed and declare them criminal offences.
On rights to privacy, Article 8 states that every person has a right to respect his private and family life, his home and his correspondence. Articles 9, 10, 11, 12 and 14, alternatively, provide rights to other freedoms. For example, Article 9 states that everyone has the right to freedom of thought, conscience and religion. Article 10 states that everyone has the right to freedom of expression in the form of words. Article 11 states that people have the right to freedom of peaceful assembly and the freedom to associate with others. Article 12 states that everyone has the right to marry, whereas Article 14 states that all rights and freedom should exist without any discrimination on any ground. The archetypes would be sex, race, colour, language, religion, political or other opinion, national or social origin, national minority, property, birth or status.
However, despite the fact that courts have to read legislation and give it effect in a way which is synchronized with the rights in the European Convention of Human Rights, the Human Rights Act 1998 recognizes that some legislation may be worded in a way that makes it impossible to give effect to the Convention. In such a case, the court has to apply the legislation as it stands but may make a declaration of its incompatibility with the Convention.
This was the case in H v Mental Health Review Tribunal (2001) in which it concerned the fact that the burden of proof was on a patient applying for release instead of being on State to justify the continuing the detention of a patient. It was a breach of Article 5 because it involved the liberty of a person. However, the domestic law was incompatible with the Convention. Therefore, the court could not give it effect. It could only declare its incompatibility.
Usually, after a declaration of incompatibility is done, the Government will change the law. However, it is unnecessary for the Government to do so. In actuality, if Parliament wishes, it can pass new legislation which conflicts the Convention. This is done by replacing the incompatible Act with a new Act of Parliament. If only a small part is incompatible, a remedial order may be done. This order acts as a statutory instrument, which amends the incompatible provision in order to comply with Convention rights.
Such an example would be in the case of A and another v Secretary of State for the Home Department (2004) The Supreme Court had declared that the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the Convention. The Act allowed foreign nationals to be detained without trial indefinitely, where there was suspicion of their involvement in terrorist activity. The Court held that this breached both Article 5, which states the right to liberty, and Article 14, which states that there should be no discrimination on basis of nationality. This forced the Government to change the law and release the detained foreigners, however on strict conditions.
The reality of this is that while the Human Rights Act 1998 does indeed protect individuals, its power is fickle and can be overridden at any time. For example, for the Bill of Rights to be entrenched, a requirement of 75% or three quarters majority is needed. However, in the case of the Human Rights Act 1998, only a simple majority of 51 votes is required for the law to be amended or abolished.
Therefore, as Professor Dicey states, ‘Parliament can make and unmake law’, which is true even in the case of the Human Rights Act 1998.