Human Rights Act 1998 - GDL Constitutional and Administrative Law

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• Introduction – Background and Objectives- HRA 1998: incorporates provisions of European Convention on Human Rights into UK law.
  • positive legal rights enforceable in UK courts.
    • cf. pre-HRA: common law rights defined negatively – [Dicey]: all not unlawful allowed.
    • cf. pre-HRA: UK signatory to ECHR (since 1950), but no domestic force.
      • no domestic remedies: individuals had to go to ECtHR in Strasbourg (1966: right of petition) – embarrassing: ‘washing of the UK’s dirty linen in public’.
      • 1968: [Ld Lester] Fabian Society pamphlet Democracy and Individual Rights.
      • 1993: [Ld Bingham MR] argued in favour of incorporating ECHR – rationale: increasing power of executive; ECHR gave citizens better protection than common law.
      • 1997: Labour Party manifesto pledge – ‘Bringing Rights Home’.
      • 1. allow individuals to argue for rights more easily.
      • 2. weave rights more powerfully into UK law by bringing them under UK jurisprudence.
        • UK had been worst violator of HR (but did follow ECtHR judgments).

        - HRA provisions.

        • s1 HRA: incorporates ECHR into UK law (cf. ECA 1972: incorporating EC law).
          • Schedule 1 HRA: sets out relevant rights + freedoms.
            • NOT Art 13 ECHR: ‘providing adequate remedies’ effective remedy provided by s8 HRA.
            • Arts 1-3 First Protocol: included, subject to reservation.
            • Arts 1-2 Sixth Protocol: included.

            Main Provisions of the Human Rights Act

            - New obligations under HRA 1998 – transform UK law:

            • 1. determining legal questions: courts must take ECHR case law into account – s2 HRA.
            • 2. interpreting legislation: read + effected in way compatible with ECHR right so far as possible – s3 HRA; declarations of incompatibility – s4 HRA.
            • 3. conduct of ‘public authorities’: (inc. courts) must be compatible with ECHR rights – s6 HRA.

            1. Interpretation of legal questions – s2 HRA.

            - s2(1) HRA: UK courts must take ECtHR case law into account in determining questions re: ECHR right.

            - Debate: how much ‘margin of appreciation’ left to UK courts?

            • ‘mirror approach’: UK courts should follow Strasbourg interpretation.
              • R (on app. of Ullah) v Special Adjudicator [2004]: [Ld Bingham]: domestic courts should keep pace with Strasbourg jurisprudence – so meaning uniform across states (ECHR international, only authoritative interpretation from Strasbourg).
              • Re McCaughey [2011]: Art 2 obligation to investigate deaths occurring before HRA came into force applied.
              • [Klug and WIldbore]:mirror approach wrong – UK courts have some scope for departure from ECHR jurisprudence, should be less deferential to Strasbourg.
              • R v Horncastle [2009]: SC: not bound by ECtHR precedent, s2 HRA: only ‘take account’.
                • ECtHR not followed: SC allowed convictions based on hearsay evidence; vs ECtHR interpretation of Art 6(3)(d) ECHR right to cross-examine prosecution witnesses.
                • [Ld Phillips]: Art 6(3)(2) unnecessary – safeguards in place in UK law re: hearsay.

                2. Interpretation of legislation – s3 HRA + s4 HRA (DOI)

                - s3(1) HRA: primary + subordinate legislation must be read + given effect in way compatible with Convention rights, ‘so far as possible’.

                • s21 HRA: definition of ‘primary’ + ‘subordinate’ legislation.

                - Debate on scope of s3: R v A (Complainant’s Sexual History) (No. 2) [2001].

                • facts: s41 Youth Justice and Criminal Evidence Act 1999 limited admissibility of ev. re: complainant’s sexual history in sexual offences trials interfered with Art 6 ECHR right to fair trial for defendant.
                • [Ld Steyn] (majority view): ‘wide’ interpretative approach – even where law ‘linguistically strained’ avoid s4 DOI.
                • [Ld Hope]: restrictive use of s3 – not where expressly/implicitly contradicted preferred s4 DOI.
                  • rationale: plain intention of Parliament a ‘brake’ on s3 interpretation; s4 DOI should be used to avoid straining meaning; courts should avoid law-making.

                  - Current approach to s3: wide interpretive approach taken, but limited.

                  • Re S (Children) and Re W (Care Orders) [2002]: courts less willing to use s3 for major changes with far reaching consequences.
                    • facts: CoA radical re-interpretation of Children Act 1989 HoL: reversed – s4 DOI.
                    • [Ld Nicholls]:courts can only interpret, not amend – ‘meaning which departs substantially from a fundamental feature of an Act is likely to have crossed the boundary between interpretation + amendment, esp. where departure has important practical repercussions’.
                    • facts: legality of marriage between man + transgender woman (birth certificate: man) technically not recognised under UK law court refused to use s3 to reinterpret Matrimonial Causes Act 1973 (to make woman.