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Lecture Plus Public Mar 2020 - Transcript

Public law (University of London)

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Introduction to Human Rights in the UK

Dr Eloise Ellis, Public law

VIDEO TRANSCRIPT
This lecture will introduce you to how human rights are protected in the United Kingdom. Human
rights may also be referred to as fundamental rights or civil liberties.
In the UK, the development of human rights protection, or perhaps more correctly, the most
significant change in protection came about just over twenty years ago with the enactment of the
Human Rights Act in 1998. It came into force in October 2000 and will soon have been in
operation for two decades. Perhaps the commitment by the current government to establish a
Constitution, Democracy and Rights Commission to consider, amongst other things, the Human
Rights Act is therefore rather timely.

In this lecture plus we will consider the following aspects (in varying levels of depth). First, what is
meant by human rights and the different classifications which apply to different types of rights. In
so doing we shall touch upon the international context. Secondly, we will look (briefly) at the
traditional (that is, pre-Human Rights Act) protection of civil liberties in the UK. Then we will move
to consideration of the Human Rights Act itself and in particular the effect of the most important
sections. You will hopefully then start to think about the impact of the legislation on
parliamentary sovereignty and also how tensions have been created (or perhaps exacerbated)
between the different organs of government by this new mechanism for rights protection and the
consequential changing role of the judiciary. Finally we will look at potential future reforms.
What do we actually mean by human rights?
A useful definition can be found from the Office of the High Commissioner for Human Rights (at
the United Nations), this states:
Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex,
national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to
our human rights without discrimination. These rights are all interrelated, interdependent and
indivisible.

There are two main categories of human rights. First, the classical civil and political rights such as
the right to liberty of the person, the right to participate in elections and the right of freedom of
expression. These are also referred to as ‘first generation’ rights. The ECHR is predominately
concerned with the civil and political rights.
There are also ‘second generation rights’ which encompass social and economic rights such as the
right to employment, education and healthcare. One of the reasons why perhaps there is greater
reluctance to explicitly protect the social and economic rights is not so much a lack of recognition
that they are important but rather that they tend to require financial expenditure on the part of
governments.
The Universal Declaration on Human Rights (UDHR), adopted in 1948 and widely viewed as being
the foundation of international human rights law, contained both first and second generation

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rights but was not a legally binding document. It is interesting, however, that when the rights were
translated into legally binding obligations (on the States which had ratified them) via the
International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on
Economic, Social and Cultural Rights (ICESCR) which entered into force in 1976, the enforcement
mechanisms for the ICCPR are much more developed than those for the ICESCR. This supports the
point I mentioned a moment ago that it is generally easier to guarantee civil and political/first
generation rights.

The Universal Declaration on Human Rights together with International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural Rights together
make up the International Bill of Human Rights.
For the sake of completeness it is also worth briefly mentioning the existence of collective or so-
called ‘third generation’ rights, such as the right to self-determination. These rights attach to
groups rather than individuals and enjoy a much lower level of recognition and protection.
In the UK human rights were usually referred to as civil liberties prior to the enactment of the
Human Rights Act. These were protected primarily through the common law by the courts in
judicial decisions. Parliament also had a role to play through ensuring that laws passed did not
excessively infringe upon individual rights and liberties.
The basic position was that individuals had the right (or liberty) to do anything which was not
prohibited by law. One need look only to the classic rule of law case of Entick v Carrington (1765) to
see how the courts were willing to act to protect and defend an individual against illegal (or
unauthorised) action by the state.
A quick reminder of what happened in that case. So in Entick v Carrington, Entick had published
some political pamphlets which were critical of the government. A Government Minister arranged
for King’s messengers (essentially government officials) including Carrington to search Entick’s
house, seize his papers and arrest him. Entick sued Carrington and the other messengers for
trespass. They attempted to justify their actions (and to justify the legality of the Secretary of
State’s warrant) by arguing that the power of seizure was ‘essential to government’ despite not
being able to point to a specific authority in law. The Court rejected this defence, holding that the
warrant was illegal and void. There was no lawful authority for the warrant and hence the
messengers entering Entick’s property were trespassing. Entick was awarded damages.
Lord Camden famously stated that if [the power alleged by the Secretary of State and his
messengers] is law, it will be found in our books. If it is not to be found there, it is not law.
So, as far back as the mid-18th century, it was clearly established that the interference with rights of
an individual could only be justified on the basis of some lawful authority. In many ways the courts
were effective guardians of individual freedom.

However, the type of protection which existed before the Human Rights Act was described as
‘residual’ or ‘negative’ as rather than a positive right to do something one had the right to do
whatever was not prohibited by law.

One criticism levelled at this type of protection was that it was vulnerable to gradual
encroachment – whilst, of course, any substantial and significant reduction in protection of
liberties would be both unlikely to occur and even more unlikely to pass without extreme
resistance it would be possible for piecemeal, even unintentional, limitations to come from laws
passed. Thus the ‘residue’ of liberty could be eroded and gradually reduced.

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It was argued that a positive statement of rights – such as that in the European Convention on
Human Rights – would amount to stronger protection. This subsequently happened with the
Human Rights Act.

There was an interim stage as from 1966 people in the United Kingdom had the right to bring
cases to the European Court of Human Rights in Strasbourg. This was referred to as ‘individual
petition’. The road to Strasbourg, however, was long and costly.
Then in 1998 the Human Rights Act was passed in the UK to address this situation. It came into
force in October 2000 and enabled breaches of Convention rights to be raised in the domestic (or
national) courts.
It is interesting that although the UK was heavily involved in the original drafting of the European
Convention on Human Rights and was one of the first members of the Council of Europe to ratify
the Convention, it was 50 years before it became part of domestic law.
In October 1997 proposals were published, in the form of a White Paper to ‘make more directly
accessible the rights which the British people already enjoy under the Convention. In other words,
to bring those rights home’
The preface to this White Paper stated that the Human Rights Bill would ‘…give people in the
United Kingdom opportunities to enforce their rights under the European Convention in British
courts rather than having to incur the cost and delay of taking a case to the European Human
Rights Commission and Court in Strasbourg. It will enhance the awareness of human rights in our
society’.

The Human Rights Act received Royal Assent on the 9th November 1998 and came into force on the
2nd October 2000. The Act aims to ‘give further effect’ to Convention rights by enhancing their
accessibility and enforceability through enabling these rights to be relied upon in the domestic (or
national) court and to provide a ‘remedy’ for breaches of human rights. It imposes several
obligations on the courts and we will identify these in looking at some of the key provisions of the
legislation.

The Human Rights Act 1998 came into force in October 2000 and the main thing it did was to
‘domesticate’ the rights and liberties which were enshrined in the European Convention on
Human Rights. This had an important practical effect as people in the UK no longer had to go to
the European Court of Human Rights at Strasbourg – now, because these rights were part of the
domestic law, their concerns could be raised before the British courts. It was because of this that
the White Paper, mentioned previously, which preceded the Act referred to the idea of ‘bringing
rights home’.
So we say that it domesticated rather than incorporated the ‘Convention rights’ which means that
they can be relied upon in the national courts.
It also gives expression to the United Kingdom’s obligation under Article 1 of the ECHR to ‘secure
to everyone within their jurisdiction the rights and freedoms defined in…this Convention’ – it
does this by placing an obligation on ‘public authorities’, including the courts, to act in a manner
which is compatible with the Convention rights unless primary legislation dictates otherwise. We
will look more closely at this shortly when we look at section 6 of the HRA.
Who can bring an action under the HRA? In other words, who has standing?

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The Human Rights Act 1998 introduced a different test of standing. Under section 7 of the HRA a
claim may be brought only by a ‘victim’ of the act within the meaning of art 34 ECHR. In
accordance with the case law of the European Court of Human Rights in Strasbourg, this does not
allow for cases to be brought by pressure groups or representative associations unless they are
themselves ‘victims’ or ‘would be’ (potential) victims of a breach of the Convention rights.
Now, we will turn to look at the most significant provisions of the Human Rights Act and this
should help with understanding the practical effect and operation of the legislation. The cases
which are mentioned are discussed in further detail in either the textbook or subject guide. I also
suggest that you look at the legislation itself and read through the following key provisions:
sections 2, 3, 4, 6 and 19.
Section 2 of the Human Rights Act places a duty on the national courts to have regard to the
jurisprudence of the European Court of Human Rights (which is also often referred to as the
Strasbourg Court).
Specifically section 2(1) states that:
A court or tribunal determining a question which has arisen in connection with a Convention right
must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights…

Although the domestic court has to ‘take into account’ it is not obliged to explicitly follow the
decisions of the ECtHR. In important cases such as R (Alconbury Developments Ltd) v Secretary of
State for the environment, Transport and the Regions [2003] 2 AC 295 and R (on the application of
Ullah) v Special Adjudicator [2004] UKHL 26, in which Lord Bingham laid down the so-called ‘mirror
principle’, the courts have indicated that although ‘not strictly binding’ on the domestic courts ‘in
the absence of some special circumstances’ the courts should follow any ‘clear and constant
jurisprudence’ of the European Court of Human Rights.

More recently courts have demonstrated greater willingness to depart from the decisions of the
European Court of Human Rights, as the UK Supreme Court did in R v Horncastle [2010] 2 AC 373 (in
a case relating to a criminal conviction based on hearsay evidence).
I have included on the slide the text of part of this section so that you can read it as I speak about
it.
By virtue of section 3 HRA, the courts are obliged ‘so far as it is possible to do so’ to interpret
domestic legislation, both primary and subordinate, in a manner which is compatible with the
Convention rights.
Section 3 (1) HRA states:

So far as it is possible to do so, primary legislation … must be read and given effect in a way
which is compatible with the Convention rights
Section 3 (2) (b) states that this section (i.e. s3(1))

Does not affect the validity, continuing operation or enforcement of any incompatible
primary legislation

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Section 3(2)(c)
does not affect the validity, continuing operation or enforcement of any incompatible subordinate
legislation if (disregarding any possibility of revocation) primary legislation prevents removal of
the incompatibility.
This is where there is a clear distinction between those States in which the courts have power to
strike down legislation which is incompatible with constitutionally protected fundamental rights.
Unlike in those countries, the Human Rights Act was specifically drafted so as to preserve
Parliamentary Sovereignty. When a statute has two (or more) potential meanings or is ambiguous
the court will choose the meaning or interpretation which is most consistent with the Convention
rights but what happens if there is no ambiguity in a piece of legislation?
The courts have indicated that they believe they are empowered under section 3 to be relatively
‘creative’ in their interpretation (although it remains a core principle that they must not adopt a
meaning which is inconsistent with a fundamental feature or purpose of the legislation). It
appears from some case law that the courts have thought it acceptable to interpret legislation
contrary to its clear meaning in order to ensure compatibility with Convention rights. In R v A it
was said that:
‘in accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to
adopt an interpretation which linguistically may appear strained. The techniques to be used [by the
court] will not only involve the reading down of express language in a statute but also the implication
of provisions’
The Mendoza case (see slide for full citation) provides a clear example. In this case the House of
Lords interpreted the words in the Rent Act 1977 that someone who had lived ‘as his or her wife or
husband’ as extending to same-sex partners. This enabled the defendant to succeed to his
deceased long-term partner’s statutory tenancy (under the Rent Act 1977). In so doing the court
departed from an earlier pre-HRA decision in Fitzpatrick v Sterling Housing Association [2001] 1 AC
27.

When the courts cannot interpret primary or subordinate legislation as compatible with the
Convention rights a ‘declaration of incompatibility’ may be made by the senior courts (High Court
and above) under s.4 of the HRA. In R v A (No 2) (2001), Lord Steyn said that a declaration of
incompatibility was ‘a measure of last resort’.
Such a declaration ‘does not affect the validity, continuing operation or enforcement of the
provision in respect of which it is given’ nor is it ‘binding on the parties to the proceedings in
which it is made’ (s.4(6)).
Neither the government nor Parliament is compelled to amend the law following a declaration of
incompatibility. There may be political pressure to do so but there is no legal requirement. If a
minister chooses to amend the law this can be done via the ‘fast-track’ procedure in section 10 of
the Human Rights Act which enables government ministers to amend the law through a ‘remedial
order’.
In relation to some case law, we will have a look at some examples of declarations of
incompatibility being issued in 2 quite distinct scenarios. The first is in the case of Bellinger v
Bellinger [2003] UKHL 21 the question for the court was whether s11(c) of the Matrimonial Causes
Act 1973 which required a marriage to be between a male and a female was compatible with the
Convention rights (particularly Article 8, a right to respect for one’s private and family life and
Article 12 which includes the right to marry).

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Mrs Bellinger was a trans-sexual female who had been born and registered as male at birth. The
House of Lords issued a declaration of incompatibility with respect to s.11(c) of the Act which did
not allow persons who had undergone gender reassignment to marry. The law was subsequently
changed in the Gender Recognition Act of 2004.
A very different example can be found in one of the terrorism cases - A v Home Secretary [2004]
UKHL 56 where the House of Lords decided that the detention of foreign nationals suspected of
terrorism under section 23 of the Anti-Terrorism, Crime and Security Act 2001 (which contained a
power of indefinite detention) was incompatible with Article 5 and 14 of the ECHR as it
discriminated on the grounds of nationality (as it did not apply to UK citizens or British nationals).

The response of the government was to introduce ‘control orders’ under the Prevention of
Terrorism Act 2005, which applied to both foreign nationals and British citizens. These were
subsequently replaced by Terrorism Prevention and Investigation Measures (commonly known as
TPIMs).
Section 6 makes it unlawful for public authorities to act in a manner which is incompatible with
Convention rights.
Public authorities are not defined in section 6 beyond explicitly including courts and tribunals and
‘any person certain of whose functions are functions of a public nature’ (sometimes known as
functional public bodies). It obviously also includes what we would consider to be ‘core’ public
authorities, such as central and local government, the police and others such as health and
education authorities.
The notion of what constituted a public authority was considered in YL v Birmingham City Council
[2007] UKHL 27. In this case the House of Lords adopted a narrow approach to what might fall
within the definition of public authority.
This case concerned a care home run by a private company which had publicly funded residents
(paid for under contracts with local authorities). The House of Lords held by a majority of 3-2 that,
despite the fact that most of the residents of the care home were placed there by local authorities,
this did not make the care home a public authority for the purpose of section 6.
Following this legislation was enacted – the Health and Social Care Act 2008 - which had the effect
of essentially reversing the decision in YL by providing that privately run care homes would be
treated as public authorities for the purposes of the HRA where they provided care on behalf of
public bodies.

The other point to note in relation to section 6 is that it excludes the two Houses of Parliament or a
‘person exercising functions in connection with proceedings in Parliament’. So Parliament
remains free (if it so wishes) to enact legislation which is incompatible with the Convention rights,
thus again preserving Parliamentary Sovereignty.
Section 19 requires the sponsoring minister for every government Bill to make a statement to
Parliament before the Bill’s Second Reading about its compatibility with the Convention rights.
This statement will either be that the Bill is thought to be compatible or that although a statement
of compatibility cannot be made the government nevertheless wishes the House to proceed with
the Bill. The Communications Bill which became the Communications Act 2003 had the latter
statement attached, that is, that the minister was unable to make a statement of compatibility but
that they wished to proceed regardless. In the end the particular provision which was thought to
be incompatible was not according to a subsequent case before the House of Lords (and
ultimately also before the ECtHR).

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There are differing views about the usefulness of these ‘statements of compatibility’ and it is
certainly true that they are no guarantee that the draft law is indeed compatible with the
Convention rights, for example, the Terrorism Bill (later the Terrorism Act 2000) had a statement of
compatibility but was later found to have incompatible provisions. Also the Anti-Terrorism, Crime
and Security Act 2001, discussed earlier in relation to the indefinite detention of foreign nationals
suspected of involvement in terrorism also had a statement of compatibility.

One advantage of section 19 might be that there is an added stage in the process which considers
the effect of the legislation on human rights although to what extent this makes a difference is
debatable given the examples just mentioned.

The impact, or rather the lack of impact, of the Human Rights Act on the constitutional principle of
parliamentary sovereignty has been mentioned at various points during this lecture but I thought
it would be useful to reiterate the relevant aspects and tie them together.
First, the protection of human rights under the Human Rights Act is different from that in most
States which have codified constitutions along with constitutionally entrenched and protected bill
of rights. By contrast the Human Rights Act was intentionally and explicitly drafted in such a way
so as to maintain Parliamentary Sovereignty whilst simultaneously strengthening rights
protection.
It was enacted in the same way as any other statute and so does not benefit from any legal
entrenchment. It might not be subject to the doctrine of implied repeal (See Lord Justice Laws
obiter dicta in Thoburn for discussion of this) but it can be expressly amended or repealed.
In the UK courts cannot ‘strike’ down primary legislation which infringes or is incompatible with
rights rather when they are unable, under section 3 of the Human Rights Act, to interpret
legislation as being compatible they may take the exceptional step of issuing a declaration of
incompatibility under section 4. This places the government and parliament under political
pressure to amend the incompatible legislation but has no legal effect – it is merely a declaration.
The specific exclusion of the Houses of Parliament from the definition of a ‘public authority’ in
section 6 further demonstrates the preservation of the legislative supremacy of Parliament.
There was opposition from some quarters during the process leading up to the enactment of the
Human Rights Act but the Bill ultimately received cross-party support in Parliament. At various
times over the past twenty years suggestions for repeal or reform have been put forward, most
often, but not exclusively, by Conservative party politicians.
One aspect in particular which has led to both acclaim and criticism is the treatment (by the
courts) of the Convention as a ‘living instrument’. For some this has resulted in unexpected and
unwarranted extensions of the existing rights but for others this has enabled the law to evolve
with changes in society.
In 2010 and 2015 the Conservative party manifestos explicitly committed to repeal of the Human
Rights Act, but in 2017 these proposals were delayed pending Brexit.
Most recently, there has been an announcement, in the Queen’s Speech, following the most recent
general election in December 2019, that ‘A Constitution, Democracy and Rights Commission will
be established’. This will presumably take forward the commitment in the 2019 manifesto to
‘update the Human Rights Act…to ensure that there is a proper balance between the rights of
individuals, our vital national security and effective government’.

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At the moment there is no more detail on this but it will be interesting to follow developments as
they happen.
One final point to bear in mind is that the UK was heavily involved in drafting the original ECHR so
it is perhaps difficult to envisage how distinct (in terms of substantive content) a ‘British Bill of
Rights’ would be. The real difference may lie in the role the judges have under the Human Rights
Act.
Thank you for your attention – I hope this has been useful and has prompted you to think about
some of the issues in this topic. Please do read the post-lecture materials and join in with the
discussion forum on the VLE.

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