Vasundhra Vigneswaran

Public Law Revision - Human Rights Act 1998

“ Do you agree that the failure of the Human Rights Act 1998 (HRA 1998) to effectively ‘bring
rights home’ calls for the enactment of a new Bill of Rights for the United Kingdom? Consider
the present interpretation and enforcement of the HRA 1998 by the English Courts.”

The question requires the discussion of the failure of the ​Human Rights Act 1998 (HRA
1998)​ to effectively apply the rights encased in the ​European Convention of Human Rights
(ECHR)​ in the United Kingdom (UK). The enactment of the ​HRA 1998​, as well as the proposal of
a new Bill of Rights needs to be discussed. The question requires discussion regarding the
interpretation and enforcement of the ​HRA 1998​ in the English Courts. In this essay, the
advantages and disadvantages of the ​HRA 1998​ as well as the necessity of a new Bill of Rights
will be assessed.

Prior to the enactment of the ​HRA 1998​, the legal landscape in regards to the protection
of human rights were considered to be under-developed. The protection of fundamental
human rights were minimal, scarce and were seconded to common law. There was an evident
lack of constitutional statutes or written rules that provide rights for citizens. Furthermore, the
rights were residual in nature, which meant that the rights people had was what remained after
‘deducting’ all that they were prohibited from doing. The UK had not formally incorporated the
ECHR as law. Before the ​HRA 1998​ was passed, individuals could not assert their Convention
rights through the domestic courts. UK law had taken precedence of human rights, which
meant that an individual had to exhaust all national law remedies first and depend on national
law to uphold and recognise his rights. Judges in the UK were powerless to apply it. Due to this,
they had to bring their cases by petitioning in the Strasbourg court, as the ECHR articles were
only enforceable there. However, in 1996, the Labour opposition had issued a consultation
paper of their plans of incorporating the Convention rights, if they were elected. However, the
suggestion was rejected by the Conservative government, stating that national laws provided
sufficiently adequate protection of human rights for citizens. In 1997, when the Labour
government won, they published a white paper, namely, ​“ Rights Brought Home”​. Following
that, the HRA 1998 came into effect on October 2nd, 2002. The HRA enhances the traditional
methods of enhancing the protection of protecting fundamental rights.

Firstly, ​S.1​ in ​Schedule 1​ of the ​HRA 1998​ states that Conventions and Protocols are a
part of UK law. This means that the rights encased in the Convention are given effect, and
victims of human rights violations can rely on their rights provided for by the Convention in
domestic courts. The articles would be ​Article 2​ to ​Article 14​ of the ECHR, with the exception
of ​Article 13​. ​Article 13​ provides for a remedy for violation of human rights in any court or
tribunal. However, the government did not want to give citizens these rights, as they felt that
they could seek remedies available in the higher courts, on appeal or in judicial review
proceedings. ​Article 13​ of the ECHR is not incorporated into the ​HRA 1998​ as the government
may not be able to provide remedies to the parties seeking it. However, this may prove to be
detrimental to the victims of human rights violations as they have to bring it to the higher
courts, as the costs are high to bring such claims to the courts.

S.2 HRA 1998​ states that when courts or tribunals are debilitating upon a question or
case in connection with a Convention right, they have to take into account the judgements,
decisions or declarations of the ​European Court of Human Rights (ECtHR)​, as well as the
opinions or decisions of the Commission or Committee of Ministers. However, the decisions of
the ECtHR are merely persuasive in nature, and are not binding. In the case of ​R (Kaiyam) v
Secretary of State for Justice (2014)​, the issue raised was the prolonged detention of two
prisoners who had served the minimum terms of their sentence, one being an indeterminate
period of imprisonment or a life sentence. The delay in their release had led to a challenge of
Art.5​ and ​Art.14​ of the Convention. The appellants argued that there had been a breach by the
respondents. However, the judges were bound by the domestic courts, and their claims were
dismissed by the Supreme Court, although there was an evident conflict with an ECtHR
decision. In accordance with ​Lord Dyson MR​, he stated that the Supreme Court is free to decide
to follow the decisions of the ECtHR or its own previous decisions as the courts are only
required to take Strasbourg court decisions in consideration. Another case in point would be ​R
(Ullah) v Secretary of State for the Home Department (2004)​, where it was stated that the case
law provided by the European Court was not strictly binding, but must be adhered to in special
circumstances.

In the candidate’s opinion, the courts have the discretion in deciding upon the
availability of rights of individuals based on the law. Courts are generally bound by their own
decisions due to the doctrine of ​stare decisis​, which is done to ensure certainty. However, this
may prove to be detrimental to the individual whose rights have been violated under the ECHR
may not be able to claim remedies as the courts are solely focused in ensuring certainty rather
than granting human rights.

S.3 HRA 1998​ states that so far as possible, primary legislation and subordinate
legislation must be read and given effect in a way so that it is compatible with Convention
rights. The courts do not possess any power in striking down primary legislation, and it must
continue to apply relevant primary legislation in such a way that it is compatible with the
Convention rights. Judges are bound by the words and intentions behind a statute. Should a
statute be in line with the Convention rights, the rights are effectively upheld in the individual’s
favour. However, if the statute cannot be interpreted and applied in such a way as to protect
human rights, the judges have no choice but to declare the legislation as incompatible. A
declaration of incompatibility (DOI) would mean that the rights of the individual are not
protected, and the protection sought from the Convention will be lost. As mentioned earlier,
the ​HRA 1998​ seems to place its priorities in ensuring certainty in the law via Parliamentary
Supremacy (PS), as compared to the protection of human rights, as the courts do not have the
power to revoke or strike down primary legislation. At the same time, the courts have the
power of interpreting legislation and the direction of its application which lies in the hands of
the judiciary. Should the judiciary be supreme, it could outrightly defy PS and ensure the
protection of rights, and this would in turn uphold the rule of law. A case in point would be
Ghaidan v Godin-Mendoza (2001)​, where the ​Rent Act 1977​ was interpreted so as that a
person could inherit the tenancy upon the death of his or her partner who lives in the house as
‘his or her husband or wife’ so as to include same-sex partners. The courts in ​Ghaidan​ referred
to ​Art.14​ in the ​HRA 1998​, which stated that discrimination of sexual orientation is not allowed.
Therefore, the courts interpreted the word ‘spouse’ in the ​Rent Act 1977​ to include same-sex
partners. Another case in point would be​ ​R v A (2001)​, where ​S.41 Youth Justice and Criminal
Evidence Act 1999​ makes a provision, whereby it does not allow rape victims to be questioned
about their sexual history. Here, a man accused of rape wanted to bring evidence of his
previous sexual relationship with the complainant, to support his defence that she had
consented. The court had to construe and apply ​S.41​ on the facts, taking into account whether
to give it its literal effect so as to protect the complainant as intended by Parliament, taking into
account that to do so would deny the accused his right to fair trial. However, on the facts, Lord
Steyn found that excluding the evidence of the rape victim’s sexual history would be unfair, and
in order to grant the accused his right to a fair trial, the Lords presiding over this case
interpreted ​S.41​ in such a way as to allow questioning of the rape victim in this case.

Nevertheless, cases such as ​R v A​ and ​Ghaidan v Godin-Mendoza​ are standing proof

that although S.3 HRA 1998 binds the courts to PS and does not give power to them to ignore
an AOP for the sake of protection of rights, This however, gives the judiciary the power of
statutory interpretation (SI) as a tool for the protection of human rights.

S.4 HRA 1998​ states that when it is impossible for the courts to interpret legislation in
line with Convention rights, then the courts are allowed to make a DOI. However, it is to be
noted that a DOI does not invalidate an AOP, and it is not binding on the parties. If an AOP that
applies in a particular case cannot be interpreted or applied in such a way as to protect rights,
or if it contradicts rights, then it is not in perfect unity. This would result in little assistance in
the applicant, as the rights of individuals are no longer protected by existing law and breach by
the respondent due to the DOI, and there will be no remedy as well. Here, in ​S.4​ it can be said
that it values PS over the protection of human rights, as PS will not be overridden just to
protect human rights. This would restrict the judiciary in their power of SI and upholding the
rule of law. S.4 does not ensure the protection of human rights. However, in exceptional cases,
the DOI has been a significant move for Parliament to reform statutory law. On occasion, the
government has amended the offending and incompatible legislation so as to not violate
human rights. This can be seen in the case of ​A (FC) v Secretary of State of Home Department
(2004)​. In ​ A (FC),​ the appellants challenged the lawfulness of their indefinite detention under
the ​Anti-Terrorism, Crime and Security Act 2001​ , where the Act was passed swiftly after the
9/11 terror attack on the New York World Trade Centre. This Act allowed for the detention of
terror suspects without trial. The Act was passed by derogating from its human rights
obligations under ​Art.15 ECHR​. However, since no other European country had done so since
the wake of the 9/11 attacks, the Lords found their detainment to be unlawful as it was a
disproportionate interference with liberty. In accordance with ​Baroness Hale​ :

“We have always taken it for granted that we cannot be locked up in this country
without trial or explanation.”

This had led to heavy criticisms faced by the government, and the government amended the
offending 2001 Act by passing the ​Prevention of Terrorism Act 2006​.

In conclusion, although the UK has incorporated the rights under the ECHR and passed the ​HRA
1998​, while it has done its work of protecting human rights, it does have its share of
disadvantages. As seen in this essay, the HRA 1998 has proven to be insufficient in some
instances, and the proposal for the enactment of a new Bill of Rights should be prepared.
Should a new Bill of Rights be enacted, the rights of citizens will be protected, even more so
than the ​HRA 1998​, and it would be compatible with the ECHR. However, this position is
unclear, as in present times, the UK has left the EU following Brexit. The usage of the HRA in
the future is uncertain, so the enactment of a new Bill of Rights would prove to be beneficial as
it still encases the fundamental rights and liberties of citizens, without making it uncertain in
light of the UK’s departure from the EU.