Human Rights Act 1998

Human Rights should be considered as the minimum level of protection that should be afforded in law by a government to its
citizens. They are an inalienable inherent to all humans and a manifestation of human dignity.

International Bill of Rights:

Modern Human Rights originated from the agreements made by the international community right after the second World War. The
Universal Declaration of Human Rights (UDHR) 1948, is the first statement of this rights, although such rights are not legally binding
since it was sourced from a General Assembly Resolution. The UDHR along with the two convenants i.e. Convenant on Civil and
Political Rights and Convenant on Economic Social and Cultural Rights gave birth to the International Bill of Rights, providing two
essential features to the Human Rights protection that were inadequate in domestic law. Firstly, it acted as an obligation on states
from infringing the rights of individuals in their jurisdiction. Secondly, the international law provided a procedure that enabled
individuals to complain about their treatment to an international body.

European Convention on Human Rights:

These rights were brought into form as a regional instrument within the European Convention on Human Rights and Fundamental
Freedoms 1950, which was ratified by the UK in 1951 and came into force in 1953. The ECHR transforms the non-binding declaration
of the UDHR into binding legal principles with an enforcement mechanism in the form of ECtHR.

The ECHR is generally accepted to be the first generation or civil and political rights; although over time, the ECtHR has developed
the scope of the convention rights to address important societal issues of the present days.

The scope of the protocol has also been extended by a number of optional protocols, the signatory states are able to sign up to. The
UK has only signed up to the first (peaceful enjoyment of one’s possession, right to education in accordance with religious and
philosophical convictions, right to free election by secret ballot.) and sixth (abolition of death penalty with only exceptions in time of
war) protocol.

European Court of Human Rights:

One important feature of the rights contained in the ECHR is that individuals were entitled to complain about breaches of their
convention rights by the state. The complaints procedure initially comprised of the European Commission of Human Rights and the
ECtHR. Prior to the eleventh protocol, states were obliged to comply with the jurisdiction of the court, or have consented to the case
being bought before it. with the eleventh protocol, a new complains procedure was established which abolished the European
Commission of Human Rights and introduced a full time court. Although, the court had the same name, it came with entirely new
powers, functions and compositions. The main effect of the protocol was to allow applicants to directly apply to ECtHR, receiving
application from both inter-state applicants (Article 33) and individuals or NGOs (Article 34)

This may be illustrated from two landmark case of the ECtHR, first in the case of Denmark v Turkey, where the Danish government
complained about the alleged torture of its citizens in a Turkish police station. It also raised a wider complaint about the issue of
torture more generally in the Turkish legal system. It was settled in 2000, on the basis that Turkey pay Denmark 450000 Danish
kroner and that the two countries participate in several projects to improve Turkish police interrogation system. On the other hand,
in Betteridge v UK, the applicant was a prisoner in UK who was subject to an “intermediate sentence”. He claimed that his Human
Rights under Article 5(4) had been breached because of a delay by the parole board in hearing his request for release. There was an
award of €750 and €2000 for the cost of finding that there had been a breach of Article 5(4). All other claims were dismissed.

Along with the changes made in the application process, the protocol also included a requirement to bring in the application within 6
months of the final decision made by the domestic court, whose decision must have exhausted the defendant. Furthermore, any
manifestly ill-founded or abuse of individual’s right of action will be declared inadmissible as per Article 53(1). Cases may even be
struck out if the applicant has not suffered significant disadvantage under the fourteenth protocol. (This was a direct resonse to the
massive workload of the court which came about as a result of the Council of Europe expansion since 1989)

The ECHR provides a constraint on the legislative authority of national parliaments, including the Westminster Parliament. These
constraints have been an area of political controversy within the UK, under both Conservative and Labour governments. In
particular, successive governments have objected to constraints on their powers due to decisions of the ECtHR, with some UK
politicians arguing that the court is overreaching its powers.

Human Rights Act 1998:

The Human Rights Act 1998 seeks to give direct effect to the ECHR in domestic law by enabling claimants to bring an action in
national courts instead of having to take their case before the ECtHR, as had previously been the case. The Act makes it unlawful for
a public authority to act in a manner contrary to certain rights prescribed by the Convention and allows the UK court to award a
remedy in the event of a breach. In principal the Act has vertical effect in that it operates only vis-à-vis, public bodies and not private
parties. There are certain situations in which the Act can be indirectly invoked against a private person.

As per s.1 of the HRA 1998 majority of the ECHR provisions has been incorporated in the Act.

s.2 provides guidelines for interpretation of convention rights. It provides that the judgments of the ECtHR should be taken into
consideration although it is not binding. (s.2(1)) While interpreting both ECtHR and UK courts are entitled to take account of the
principles of proportionality i.e. legitimate aims of government legislation must be proportionate to Human Rights impact. (R (Daly)
v Secretary of State for Home Department)

Conflict with Parliamentary Sovereignty: In the case of R(Ullah) v Special Adjudicator, Lord Bingham stated that “it follows that a
national court subject to a duty such as that imposed by s.2 should not without strong reason dilute or weaken the effect og the
Strasbourg case law.” This suggests that s.2 weakened Parliamentary Sovereignty giving effect to ECHR. The fact that international
law takes precedence over domestic law means that Parliament is no longer the supreme legislature.

s.3 defines the “interpretative obligation” of the HRA. The most frequent use of the Act might be the interpretative one, since it
requires courts to interpret statutes in a way that is compatible with Convention Rights. Under, s.3(1) the courts are required to
interpret the rights under the convention “So far as possible”. This has an effect on all cases, civil or criminal, private or public. Thus,
since 2000, ministers are entitled to issue a “statement of compatibility” while introducing a Bill in the Parliament.

It was previously thought that this provisions can only be applied in ambiguous situation. However, in R v A courts illustrated a
creative use of the interpretation by using the provision in unambiguous situations as well. Moreover, in Wilson, the judge gave an
independent judgment to comply with convention rights and did not follow the ordinary principle of statutory interpretation.

Conflict with Parliamentary Sovereignty: The interpretative obligation under s.3(1) has shifted the interpretative focus from what
Parliament originally intended and weakened Parliamentary Supremacy. Lord Nicholls in Mendoza stated that “s.3 may require the
court top depart from this legislative intention, that is depart from the intention of the Parliament which enacted the legislation.”
Here, the court looks beyond the words of the statute to find the historical context of enacting it. The issue is whether the
Parliament’s intention is a meaning or an intention which as per Lord Reid “we are seeking the meaning of the word that Parliament
used. We are seeking not what Parliament meant but the true meaning of what they said.” (Black Clawson Intl. Ltd.) Moreover, in
Anderson it was termed as “vandalism” if the judgment conflicts with original words of the statute.

s.4 states that only superior courts can issue the “declaration of incompatibility” (Mathews) stating that an Act of Parliament in
conflict with Human Rights is “incompatible” in the given scenario or case and hence not applicable in that regard. In R v A Lord
Steyn stated that a declaration of incompatibility “is a measure of last resort; it must be avoided unless it is plainly impossible to do
so.

Conflict with Parliamentary Sovereignty: s.4 does not encroach on Parliamentary Sovereignty, because such a provision does not
invalidate the provision concerned. (s.4(6)) In addition, there is no pressure on Parliament to take remedial action, although it can
do so under Article 10 of Schedule 1 of the HRA. This means that the Parliament’s competence to enact any legislation is
unimpaired, although a powerful restraint has been imposed upon its freedom to interfere with fundamental rights. On the other
hand, the capacity to issue such a declaration subtly alters the allocation of powers as “Parliament has invited the judges to tell it
that it has acted wrongly by legislating incompatibility with a convention right.” (Wilson v First Country Trust Ltd.)

s.6 provides the ability for the HRA 1998 to enforce Convention rights against public authorities. s.6(1) provides that it is unlawful for
a public body to act in a way that is incompatible with a convention right, where public authority is defined in s.6(3). (L v
Birmingham City Council) Moreover, s.145 of the Health an Social Care Act 2008 provides that a local authority is now considered
to be exercising the “function of a public nature” within (s. 6(3)(b)). However, an institute which runs on public funding or ran on
public interest might not be considered as a public body if it does not exercise government function. (Fearn v Board of Trustees of
the Tate Gallery (2019)) On the other hand, a panel appointed by the Foreign and Common Wealth Office conducting a non-
statutory inquiry may also be considered as public authority, since it was exercising a function ordered by the House of Lords.
(Foreign and Commonwealth Office v Warsama and Gannon (2020).

s.7(1) allows a prospective victim to bring proceedings against an authority in an appropriate court or tribunal. Victim means anyone
affected by the act or omission that leads to the breach of convention rights. (Mathews v Ministry of Defence)

Finally, s.8 provides the remedies once a breach of a Convention Right by a public authority is established. The remedies are
included in s.8(1). (Marcic v Thames Water Utility)

s. 6, 7 and 8 has been seen as an instrument to develop a culture of respect for human rights among public authorities. Although, it
is undoubtedly hard to justify whether such a culture has been developed, the Act may be seen as a strong enough instrument to
develop such. “A culture where public authorities are habitually, automatically responsive to human rights consideration in all
aspects of their work” (as stated by Lord Irvine)

Effects of the HRA (Relationship between judiciary and executive):

One of the fundamental tension in regard to the effect of the 1998 Act is the relationship between judiciary and executive. “Issues
which, in the past, were decided by ministers accountable to Parliament will now come to be decided by the courts” as stated by
Professor Vernon Bogdanor. This may be seen as a significant balance of power between the executive and the judiciary.

Although, the strain in their relationship has not yet been witnessed, Charles Clarke pointed out that “there is a constitutional
tension which is not properly resolved and which it would be beneficial to resolve”. While such a constitutional pitfall has been
critically examined, senior judges including Sir Igor Judge and Lord Mackay recognised such tension as healthy, since many people
does not welcome their activities to be judged, particularly if they have failed to execute their responsibilities adequately.

An in depth examination of the rule of law reveals the requirement for such strains, since the duty of the judges involves to limit the
government’s powers to protect the public, and in Lord Bingham’s views is an inevitable and entirely proper tension between the
two branches.

Although the adverse relationship between the two bodies had been abstract, such a situation might risk public confidence on both
executive and judiciary. Since, a disputed system of governance is neither expected nor appreciated.

Prisoner’s voting rights:

One of the major debates in contrary to the HRA is the prisoner’s voting rights. The established law had been that prisoners are not
entitled to vote during their duration of detention. In 2004, the ECtHR in Hurst v UK declared the UK’s prohibition on convicted
prisoner’s voting right as incompatible with the ECHR. In effect, a Draft Bill, namely Voting Eligibility (Prisoner’s) Bill was published
by Lord Chancellor in November 2012, along with a Joint Committee to conduct pre-legislative scrutiny. The committee published its
report in December 2013, which recommended that all prisoners serving sentence for 12 months or less should be entitled to vote in
all UK Parliamentary, local and European elections.

The Draft Bill had been a matter of political controversy and political reluctance of successive of successive governments to tackle
this legally simple, but politically uncomfortable issue.

The right to vote is the very basis of democracy, and is recognised in most national constitutions and international human rights
instruments and has been called the “rights of rights”. It cannot be denied that the detainees in the course of their punishment still
remain a citizen of the country and is entitled to execute their fundamental rights. If such a violation of rights is incorporated in the
sentencing period, it must not be forgotten that they are already obliged to undergo their respective punishment and a denial of
human rights shall not be recognised as a part of their detention.

If prisoners are not entitled to exercise their fundamental rights under the convention, then the UK’s sign up to the sixth protocol i.e.
abolition of death penalty, might also be seen as unconstitutional, since the protocol undoubtedly defines rights of ofenders.

Criticisms of the HRA 1998:

The HRA has been seen to be cruelly treated in its early years of enactment by both labour and conservative party. Although, the Act
was popular among lawyers and NGOs and Parliamentary Joint Committee on Human Rights and Equality and Human Rights
commission has provided a great deal of effort to promote an enthusiastic understanding of the measure, the HRA has distinctly
failed to build up an intellectual or political head of steam.
The Labour party since the birth of HRA has been spectacularly hostile upon bringing the Act into force and provided an impression
of reluctance upon its adoption. On the other hand, the Conservatives took steps to repeal the Act.

The first issue to consider is whether a declaration of incompatibility under s.4 is “an effective remedy”. (Burden and Burden v UK)
Such a declaration is persuasive and non-binding on UK courts, making it no more than purely advisory, picking and choosing which
to ignore and which to follow up.

The second issue lies in considering, if the HRA were to be repealed, what effect would there be on the judicial protection of
Convention rights within the UK. Although, the UK would repeal the HRA, and the BREXIT would put an end to the convention rights,
there still remains many cases decided in line with convention, which still remains intact even after the repeal.

Another criticism of the HRA is that universities do not provide necessary emphasize on the topic, which has been largely seen as a
preserve of lawyers. No critical examination of the aspect is done on the academic sessions, and the area only remains as a minor
segment of the administrative and constitutional subjects.

A British Bill of Rights:

A bill of rights is a constitutional code of human rights which is binding in law, is inevitably generally worded and an overriding
authority over other laws.

A major obstacle to the creation of such bill in the UK is the unwritten constitution, one of the central planks of which is the Doctrine
of Parliamentary Supremacy. This debate took place against a background of increasingly interventionist government and unease
over the extent of the executive’s power. Until relatively recently most commentators were content to subscribe to the Diceyan
thesis, that reliance on unwritten constitution was a threat, in the 1970s and 80s came a wave of terror activities and other
pressures which resulted in new, broadly-drawn offences increasing discretionary powers of government agencies, and limiting the
flexibility of judicial interpretation.

Suddenly it became apparent that there was no effective mechanism by which rights could be enforced. Goedfroy Robertson held
that “Freedom the Individual and the Law”. Although the HRA has been enacted it mostly acts as a persuasive authority and is
subject to repeal.

However, a constitutional mechanism such as a Bill of Right might act as a higher authority even though it might be argued that, the
HRA enactment i8s sufficiently recentand a further development of Act might act as a higher protection of the rights of minorities
and reduce the scope of Government overreaching its powers. Furthermore, the Commission on Bill of Rights suggested a higher
authority for UK in absence of the European Convention (after BREXIT) to declare any incompatibility of the UK’s legislation.

Can UK courts extend convention rights?

In the case of Re P, preventing an unmarried couple’s adoption breached the couple right to respect for family life under Article 8 of
ECHR. This raised concern of whether the ECtHR was interpreting convention rights in a way that was too liberal and expensive for
the UK. Furthermore, this left the domestic courts with no direction on whether the convetion rights would be used as a floor from
where the UK courts would dynamically build its interpretive rules or a ceiling over which they would not step. Although, in certain
situations they are seen to approach beyond the ECHR.

Case study- Denbigh High School:

In the case of R (on the application of Begum) v Head Master and Governors of Denbigh High School, Shabina Begum asked for
permission to wear jilbab (a Muslim Woman’s dress) instead of salwar kameez in school. The head refused her permission to wear
jilbab and said that she would only be allowed on school premises on uniform. Begum took the case to High court claiming a breach
of her rights under Article 9 of the ECHR, i.e. freedom of religion. On appeal the case went to the House of Lords, who did not
recognise such a breach. The school’s decision to refuse to relax the school uniform rules was well within the margin of discretions
that school should have.

The majority of the House of Lords pointed out that Art 9 does not mean that people have the right to manifest their religion at any
time, any place or in any manner which accords with their beliefs. The other Lords believed that the school rules had legitimate aim
of protecting the rights and freedoms of others. Since the school has other Muslim girls who did not wish to wear a jilbab and felt
pressure to wear them. Their rights and freedoms were protected by the uniform policy.
Background of Terrorism in the ECHR:

The law of terrorism has been recognised as an “unmitigated disaster” accompanied by unstable legislations in today’s society. Much
criticisms is to do with the compatibility of the legislation with the ECHR and government continually face challenges to strike the
balance between ECHR and individual Human Rights. Over the years it had been greatly understood that “the interference with a
right of freedom may be more readily justified in the case of terrorism” which brought in several legislation after the 9/11 which all
saw new legislation or amendments.

The ECHR and the HRA plays a central role where they need to be adhered to both in relation to state security and individual rights.
This means if the states are unable to compromise individual freedoms up to a certain extent then it will be impossible for the public
bodies to ensure anti-terrorism. However, ensuring such security might make the legislations concerned unlawful if they are
incompatible with ECHR. (s.6(1)) An example may be Article 3 i.e. prohibition from torture, which is absolute right and signatory
state is not entitled to violate this article an any circumstance. Cahal v UK states “The convention prohibits in absolute terms torture
or inhuman or degrading treatment or punishment irrespective of the victim’s conduct”. Although, the ECtHR extended the domain
in Soering v UK recognising the responsibility of the state under the convention, where substantial grounds can be shown for
believing that person concerned, if extradited, faces a real risk of being subject to torture or to inhuman or degrading treatment or
punishment in the requesting country. Furthermore, the extraterritorial effect of the case was confirmed in Cruz Varas v Sweden.

Under Article 5, everyone has the right to liberty or security of person. Thus, no one shall be deprived of his liberty unless in
accordance with a procedure prescribed by law i.e. lawful detention after conviction by a competent court, non-compliance of lawful
order of the court, for the purpose of bringing him before the lawful authority due to reasonable suspicion.

Part 4 of the Anti-terrorism, Crime and security Act 2001:

Part 4 of the Anti-terrorism, Crime and security Act 2001 allowed the Home Secretary to impose control orders on certain
individuals suspected of terrorism, and where deemed appropriate such measures could “opt out” of human rights laws. This Act
was a product of the events of 11tyh September 2001, and the government and security services were faced with the problem of
dealing with much number of terrorist suspects who were foreign nationals. It was very evident that Article 3 would prevent suche
suspects being deported from the country which was the situation in Cahal v UK. Although, the Act incorporated a few grounds of
appeal to the Special Immigration Appeal Commission (SIAC) and eventually to the Court of Appeal, such grounds were extremely
limited.

A v Secretary of State for the Home Department 2004:

A v Secretary of State for the Home Department 2004 concerned the detention of foreign prisoners in the UK under s.23 of the
2001 Act on Belmarsh prison. The decision and the subsequent decision was challenged in ECtHR. The original case was brought by 9
individuals who were threatened with deportation without trial on the basis that there was some evidence that the individuals
posed national security threat. They challenged the decision of the SIAC.

The issue is so important because it shows a direct challenge in the courts, of the extent to which legislation confers powers to
executive in the way in which they deal with a presumed threat to the national security.

The HL held that the provisions under which the detainees were being held in Belmarsh prison were incompatible with Article 5.
However, the Home Secretary was not required to release the prisoners. The provision had the effect of discriminating between
foreign nationals and nationals of the state.

Control Orders Under the Prevention of Terrorism Act 2005:

The Prevention of Terrorism Act 2005 acted as a replacement of the 2001 Act and was response to the issues pointed out on A v
Secretary of State for the Home Department, the new Act brought in two types of control orders, i.e. derogating orders and non-
derogating orders.

A control order can impose several restrictions and obligations on an individual. Control orders can determine what an individual can
possess, where he may work, live, talk to and where he can travel. Normally such an order should constitute a restriction of liberty
rather than a deprivation of liberty. At such a appoint where the latter occurs to be unlawful it would have to be a derogating control
order. To achieve this, the Home Secretary would have to apply to the court and the derogation has to satisfy Article 15 where such
measures are allowed if there is “war or other public emergency threatening the life of the nation”. Since the PTA 2005, no such
orders has been implemented.
Non-derogating orders are seen to be more compatible with Article 5 which require the Home Secretary to provide a “reasonable
ground for suspecting” that a person is involved in terror activities. This means that the Secretary of State will no longer be able to
implement measures on reasonable suspicion, but upon reasonable grounds of involvement in terrorism related activity, which acts
as a much more restrictive concept. This along with the requirement to apply to High court to apply the new measure, should result
in greater executive accountability. Although, in extreme cases the Home Secretary can implement such order without permission,
which must be qualified by court within 7 days.

Terrorism Prevention and Investigation Measures Act 2011:

Terrorism Prevention and Investigation Measures (TPIM) Act 2011, provides TPIMs which includes restrictions on overnight
residence and in travel and finance imposed by the home secretary who in turn has the discretion to access secret evidence that
cannot be revealed to the jury. The TPIMs amend the control orders as per the 2005 Act and unlike control orders (which could be
extended year by year) can be extended only once for a period of 12 months. This two-year time limit will only be subject to
extension only if new evidence of terror activity is found.

Counter Terrorism and Security Act 2015:

The Joint Terrorism Analysis Centre’s prediction of terror threats in 2014 gave birth to the Counter Terrorism and Security Act 2015.
It implements legislation relating to prevents the departure and arrival of foreigners suspected of terrorism into the UK, as well as
those are citizens of UK. The Act further increases powers of various public bodies, such as the police, in an attempt to make the
measures highly effective. The Act’s provisions can be identified in six areas i.e. temporary restriction on travels, TPIMs, extension of
retention of communication data, strengthened security arrangements for transport and so on.

The 2015 Act amend the TPIM measures incorporated in the 2011 Act and allows secretary of state to agree with individuals a
locality in which they must reside in or he can require the individual to live in a residence which he consider appropriate. It also adds
that “if there are premises that are the individual’s own residence at the time the TPIM notice is imposed, the Home Secretary may
only require the individuals to live in a residence that is more than 200 miles from those premises if the individual agrees.”

This amendment essentially gives the Secretary of State power to choose where they live, and in effect relocate. This may be
problematic in terms of the ECHR, the 2011 Act when introduced essentially removed this powers of relocation which was available
in Control Orders in the 2005 Act. This power of relocation although not contested by judges, it was recommended that actions
should be taken to reduce interference. (D v Secretary of State for the Home Department)