Q N A ON HUMAN RIGHTS

Question 7- 2010
Discuss the case for replacing the Human Rights Act 1998 with a
British Bill
of Rights and Responsibilities.
Or
Question 7-2011
Explain the key provisions of the Human Rights Act 1998 and, with
reference
to case law, assess their effectiveness in guaranteeing rights and
freedoms in
the United Kingdom.
Or
Question 7-2009
With reference to case law, critically assess the view that, since the
enactment of
the Human Rights Act 1998, the judiciary has assumed more power
than
Parliament intended.
Or
Question 8-2012
Discuss whether the Human Rights Act succeeded in doing what it
was
designed to do.
Or
Question 3 2014
Discuss the extent to which sections 3 and 4 of the Human Rights
Act 1998
encourage a dialogue between the courts, the executive, and the
legislature.

Ans.

The question requires explanation of the origins of the ECHR and its status in
International law including the influence of the convention on domestic law
before the Human Rights Act. It is essential to mention the background to the
Human Rights Act 1998 including the perceived weakness in the domestic
protection of rights caused by the traditional approach to rights and
freedoms and the problem posed by parliamentary sovereignty. The key
provisions of the Act are s.2, 3, 4, 6 and 10 therefore the interpretation of
each section in the form of cases should be mentioned showcasing the
manner in which the courts as public bodies have extended the law
(particularly in relation to privacy) to cover private rather than public bodies;
A discussion of the Human rights Act would hence be undertaken in order to
evaluate whether a British Bill of Rights and Responsibilities is necessary,
the discussion of the Act should focus on its structure and scope, which
preserves the constitutional balance between Parliament and the courts,
ensuring that Parliament retains its power to amend the law and restricting
the judges to Declarations of Incompatibility.
It is pertinent to mention that Bill of Rights occupies a central place under
many written constitutions, providing charter of rights with which no
government can interfere. The essential question which arises and requires
discussion is whether such a document could be accommodated under the
United Kingdom constitution, without transforming it into a written
constitution abandoning the traditional concept of parliamentary sovereignty
and creating a Supreme Court with the power to invalidate incompatible
legislation. Should Britain adopt a Bill Of Rights to supplement the ECHR?
European Convention on Human Rights came into effect in 1953. The United
Kingdom government made such a declaration and accepted the compulsory
jurisdiction of the European Court of Human Rights in 1966. Since then the
UK has been bound, as a matter of treaty obligation, to conform to the
requirements of the ECHR. ECHR has been incorporated into the national
laws either automatically or through necessary action. UK government had
not incorporated the ECHR until the enactment of HRA 1998. Before the
enactment of HRA, ECHR had a persuasive effect on the domestic laws of the
UK for example in Derbyshire County Council v Times Newspaper Ltd, ECHR
article 10 was relied upon. Similarly in Rantzen v Mirror Group Newspapers
Ltd the Court of Appeal reduced the libel damages in the influence of ECHR.
However on other occasions ECHR was deemed irrelevant (Brind case).

In Vo V. France The Court held that a foetus is not protected but failed to
define 'everyone' whose life is protected under Article 2 of the HRA. In
Ghaidan v Godin-Mendoza the House of Lords used s 3 Human Rights Act

to reinterpret The Rent Act 1977 Schedule 1 Paragraph 2, so as to make

survivorship rights in respect of statutory tenancies apply to cohabiting
same-sex couples, and not just to those who lived together as husband and
wife. The House of Lords reached that conclusion even though the
legislation only gave survivorship rights to a person living with the original
tenant as his or her wife or husband. The case shows the willingness of the
judges to use s 3 of the Human Rights Act to depart from legislation. But
they will only do so to give effect to Convention Rights, and they will not do
so if the proposed reading of legislation runs contrary to a fundamental
feature of the legislation.
In R V A (Complainants Sexual History) guidelines were given on how to
assess compatibility with the Convention rights; it must be successfully
established that the legislative provision has interfered with a convention
right, if it has then three questions must be considered by the courts; was
the legislative objective important enough to justify interference with
fundamental rights; were the measures adopted to meet the objective are
rationally connected to it; was the method used to impair the right no more
than was necessary to pursue the objective. This approach has been adopted
from European Law and is often known as proportionality. In the case it was
added that s3 goes further than requiring the court to take the convention
rights into account, in fact the court has a positive duty to strive to find a
possible interpretation compatible with convention rights, with Lord Steyn
saying that this may even mean adopting an interpretation which may
appear linguistically strained.

In R (Anderson) v Home Secretary the House of Lords decided that, in

setting the minimum period to be served by an adult mandatory lifesentence prisoner (the tariff period) under s 29 Crime (Sentences) Act 1997,
the Home Secretary is carrying out a sentencing function. The House thus
issued a s 4 Human Rights Act declaration of incompatibility with respect to s
29, and refused to use s 3 Human Rights Act to reword the Home Secretarys
tariff-setting power as a duty to follow the trial judges recommendation. In
Bellinger v Bellinger, Mrs Bellinger, a trans-sexual female who had been
born and registered as a male at birth, could not validly contract a marriage
with another male. It was held that Section 4 (6) HRA enables the court to
make a declaration of incompatibility where legislation is found to be
incompatible with the ECHR.

Although the primary effect of H.R.A applies to public authorities, its

structure have possibility of horizontal effect. The reason is because section

6 of the H.R.A defines courts and tribunals as public authorities. Accordingly

their judgments or their order must be compatible with Convention rights
even when an action is a private one between two citizens, except in cases
of declarations of incompatibility. Since H.R.A does not confine this duty to
cases involving public authorities, the logical implication is that section 6(1)
requires a court to give judgement in a way which compatible with
Convention rights in all cases. It might seem to follow that the courts must
protect the Convention rights of an individual party in any legal proceedings
from infringement by public authority or by private person. In this respect of
Convention rights would have horizontal effectiveness in the case between
private persons (Sunderland v PS, Smith v Evans, Re S)

In absence of a right to privacy or independent remedy for breach of privacy,

the remedy of breach of confidence could provide protection in cases
involving commercial interests however in Campbell case the court
dispensed with the requirement of a relationship of confidence and extended
the remedy to cover intrusions of privacy where there has been a misuse of
private information. R V. Shayler clearly showed that the sections 1(1) and
4(1) of the Official Secrets Act, is not incompatible with the Article 10 of the
Human Rights Act 1998 which guaranteed the freedom of expression. The
court held that the combined effect of Ss. 1 (1) and 4 (1) was that a
defendant could not rely on a defence of public and national interest to
disclose information protected by these sections.

In A and others v Secretary of State for the Home Department ,

the House of Lords where it held that the indefinite detention of foreign
prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism,
Crime and Security Act 2001 was incompatible with the European Convention
on Human Rights.
Professor Conor Geartys) thinks that the ECHR would be relaxed if the
United Kingdom repealed the HRA because the case law would then revert to
the position in the 1990s. The main disadvantage for the court would be an
increased workload, with more UK cases having to be dealt with in
Strasbourg rather than being resolved by UK courts.
Gearty argued that the incompatibility procedure serves to buttress rather
than undermine parliamentary sovereignty because he thinks that its
absence would encourage a trend among some judges to consider striking

down statutes which were not compliant with the common law, rule of law
and fundamental rights.
It was concluded in the Commission on a Bill of Rights Final Report that three
factors led a minority of the Commission to oppose the creation of the UK Bill
of Rights; difficulties over the implications for devolution, the fact that the
majority of witnesses were strongly in favour of the current arrangements
and the concern that some (though not all) of the proponents of a UK Bill of
Rights were also in favour of withdrawal from the ECHR.
It can be concluded that The HRA Act has been used by the judges in a
robust manner which has created a tension between the courts, legislature
and the executive. Examples of this include the development of the law of
breach of confidence to protect personal privacy a development not
intended by Parliament. Another example is the giving of horizontal effect to
Convention rights, through the interpretation of section 6. Further difficulties
have arisen in relation to national security, with judges ruling that indefinite
detention of foreign terrorist subjects is unlawful, and that control orders
may also be unlawful. Like other countries which have their own Charter of
human rights such as Canadian Bill of Rights 1960 and New Zealand Bill Of
Rights 1990, a proposal of UK Bill Of Rights may help to fill the defects of the
HRA especially if Parliamentary Sovereignty has to be restored without
codifying the constitution. Also the HRA is yet to be perfected as it doesnt
address some of the important issues such as asylum and immigration.