Constitutional and Administrative Law: The Human Rights Act 1998 (1)

Introduction: Before HRA, civil and political rights recognised and enforced in the UK solely within the established framework of statutory and common law principles. HRA 1998 incorporates 'Convention Rights' (ECHR) into UK law. HRA creates new rules of statutory interpretation: enables citizens to test the compatibility of leg'n with Convention rights.  Obliges the courts to take Strasbourg jurisprudence (ECtHR) into account when considering HR issues in litigation. Unlawful for public authority to act in any way incompatible with Convention rights:  Allows individuals to rely on breach of Conv. rights in proceedings against public authorities. Also provides some remedies. Schedule 1:Convention rights included: Right to liberty and security; fair trial; prohibition against torture, slavery and forced labour; rights to privacy, freedom of belief, etc.

Substance of Convention rights narrowly confined to legal rights written in broad language of negative liberty or "freedom from unjustified interference". Narrow interpretation - without formal consideration of potential impact on economic, social or political issues.

Drafting: Sustained pressure from judiciary and academic writers. Many draft Bills of Rights (Lord Anthony Lester) submitted to the H of L. Form of Act influenced by requirements of drafting an official gov't, rather than a private member's Bill. Latter may have produced a different formulation. Primacy given to Parliamentary sov'ty - HRA falls short of allowing courts to hold that Acts of Parliament are unconstitutional / illegal.

Courts before the HRA:Courts were able to safeguard against arbitrary and unreasonable interference with human rights in the pre-HRA era. They were able to: Interpret legislation in the light of constitutional fundamentals, ensuring an interpretation taking account of human rights (Waddington v Miah [1974]). Assume that Parliamentary intention was not to interfere with fundamental rights (Raymond v Honey [1984]). Courts may refer to constitutional values e.g. ultra vires (Ahmed v HM Treasury [2010]). Apply principles of natural justice to ensure a fair and impartial hearing (Ridge v Baldwin [1964] and Pinochet [2000]). Criticisms of this system: Not all rights recognised e.g. right of privacy (Malone v Metropolitan Police Commissioner [1979]). No judicial powers to challenge primary legislation potentially violating rights (Rossminster Ltd [1980]). Courts unwilling to apply 'European' principles of necessity and proportionality when challenging executive actions (Brind [1991]). ECHR could not be taken into account as a direct source of rights (Malone [1979] and Brind [1991]).

The role of Parliament:Some legislation has secured the rights and freedoms of individuals: Police and Criminal Evidence Act 1984 - safeguards against arbitrary police powers concerning arrest, detention and search and entry. Data Protection Acts 1984 and 1998 - safeguarding right to privacy regarding personal information. By contrast, legislation that has interfered with rights without challenge from the courts: War Damage Act 1965 retrospectively took away the individual's right to compensation for war damage. Public Order Act 1986 - restrictions on the right to peaceful protest. Anti-terrorism legislation

Interpretation of the HRA: Legislation interpreted in accordance with ECHR - Parliamentary intent examined first. Courts consider any justifications on the part of others for interfering with a Convention right - must be judged under proportionality. Questions to consider: Is the legislation such as to suggest that its importance justifies limiting a Convention right? Are the means used to limit Convention rights no more than is necessary and rational?

Section 3: Courts have greater powers to interpret legislation in accordance with the ECHR. Scope depends on the extent to which the courts are prepared to interpret legislation in light of Convention rights i.e. what the courts regard as a 'possible' interpretation. CASE: R v Offen [2001] Interpretation of Crime (Sentences) Act 1997 s.2 - duty to impose automatic life sentences to defendants who had committed two serious offences, unless there were 'exceptional circumstances'. 'Exceptional' must be given its ordinary meaning - Parliament could not have intended the section apply to sb who did not pose a future risk.

European Court of Human Rights (ECtHR): Malone v UK [1984] - Unregulated telephone tapping contrary to Art 8 ECHR. Sunday Times v UK [1979] - Domestic contempt laws violated Art 10 ECHR. Smith and Grady v UK [2000] - Dismissal of homosexual armed forces personnel violated Arts. 8 and 14. Chahal v UK [1997] - Deportation of individual for national security violated Arts. 3 and 5.

Section 3 (cont'd):CASE: R v A [2001] Youth Justice and Criminal Evidence Act 1999 s.41 - evidence of complainant's sexual behaviour can only be allowed with leave of the court in express circumstances. Section should be read as being subject to the implied exclusion that evidence required to secure a fair trial under Article 6 of the Convention should not be inadmissible. CASE: Sheldrake v DPP: A-G Ref (No 4) [2004] Interpretative obligation (s.3) applied even where no ambiguity; must find a possible interpretation compatible with ECHR.  Courts may depart from traditional principles of statutory interpretation, assuming that leg'n is not intended to conflict with HRA. Situations where courts may be radically altering statutes (effectively legislating) to achieve compatible results; perhaps better to leave the initiative to act to Parliament? (Bellinger v Bellinger [2003]; Ghaidan v Godin-Mendoza [2004])

Declarations of Incompatibility: HRA s.4: Used to bring the issue of the Act's incompatibility to the attention of the Legislature.  The Act will remain valid until Legislature passes amending leg'n (effectively preserving Parliamentary sov'ty). 27 Ds of I made since October 2000 - 19 have become final, with 12 amended by new legislation.

Jurisprudence:CASE: Rushbridger [2003] Treason Felony Act 1948 s.3 - incompatible with Art 10 ECHR? Courts refused to make a D of I without proof of any particular victim of the leg'n. CASE: International Transport Roth GMBH [2002] Drivers and owners of vehicles all given penalties for effecting clandestine entrants to UK contrary to Immigration and Asylum Act 1999 s.32. Claimed penalties contrary to Arts 5 + 6 ECHR, and to right of property under Art 1 of the First Protocol. Penalty regime did not adequately protect the rights of those alleged to be responsible for clandestine entrants. CASE: Bellinger v Bellinger [2003]Legislation declared incompatible where clearly out of line with ECtHR jurisprudence.

Public Authorities: HRA s.6: Imposes obligation on public authorities not to violate Convention rights. Retains Parliamentary Sov'ty - provides that duty does not apply where the authority could not have acted differently having regard to the power granted by Parliament. Unclear definition: s.6(3): Includes court / tribunal - not House of Parliament or any individual exercising functions in connection with Parliamentary proceedings. s.6(3)(b): 'Public Authority' includes any person whose functions are functions of a public nature. s.6(5): In relation to a particular act, a person is not a public authority if the nature of the Act is private.

Jurisprudence:CASE: Heather v Leonard Cheshire Foundation [2002] Housing foundation not public authority - not a public law function within s.6. Exercised private functions despite its receiving public funding and being state regulated.CASE: Poplar Housing v Donoghue [2001]Housing association considered a public authority - not only did it provide a public service and was regulated by the local authority, its role was very closely connected to that of the local authority.CASE: Parochial Church Council v Wallbank [2003] Public authority must have sufficient governmental links and public status. Parochial church council considered a religious body, not governmental. Not a 'core' public authority, especially as it exercised private functions.

Introduction

Before the HRA

Interpretation

Declarations of Incompatibility

Public Authorities