Why Human Rights

The Labour Government’s decision to incorporate the European Convention of Human Rights is probably the most significant Human Rights reform this century. For the first time, positive rights, such as privacy of family life, freedom of expression and the right to a fair trial, and freedom from discrimination will be enshrined in domestic law.

Some statistics

A recent Gallup International survey of 60 countries found that only 25% of Britons believe human rights are fully respected in the UK. The Dutch on the other hand gave their government the highest ranking of 70%; the US got 18%, with Columbia at the lowest with 2%.

Moreover LAG reports in the December issue of its 1999 journal that on 30^th October over 200 relatives of 1,350 people who have died in state custody since 1990 marched from Trafalgar Square to Downing Street to hand a petition to the Prime Minister Tony Blair, urging a change in the way such deaths are investigated.

When will it happen?

The Human Rights Act 1998 (“the Act”) (hereinafter called “the Act”) received the Royal Assent on 9 November 1998 and became law. Sections 18, 20, 21 (5) and 22 came into force on that date. However, the main provisions of the Act only came into force on 2 October 2000. This does not mean, however, that the HRA can simply be ignored in matters pre- October 2000, for it will have retrospective from 2 October (Section 22 (4)), but only where it is being relied on by a public body 9as opposed to being argued by a private individual or company). Furthermore although the main provisions of the Act are not yet in force, Convention rights can be argued in court[1].

A Brief History of ECHR

1948 - UN adopted the Universal Declaration of Human Rights.

1950 the European nations under the Council of Europe adopted ECHR.

The driving force behind the Convention was to a desire to prevent the reoccurrence of the holocaust type atrocities.

Not until 1966 that UK citizens could sue their government in Strasbourg for breaches of the Convention.

With the incorporation of The Convention by the Act, these rights are coming home!

What the Act Will Do

Give every person within the UK a set of basic rights, protected by law.

These positive and negative rights.

That is, they say what a person is entitled not to have done to them.

They also require that Government and public bodies ensure that those rights are protected (ie public obligations).

Once enforced all British Courts and Tribunals will have power to hear complaints directly under the Convention and to provide appropriate remedies.

Before the Act individuals could only sue in Strasbourg after having exhausted all remedies available in the UK. That process took up to 5 years.

From 2^nd October 2000 the Act imposed a new duty on Parliament and Government departments (public bodies) to legislate and/or make decisions so as to protect the rights under ECHR.

The Act will have a tremendous impact on the decision of the following bodies:

(a) the courts;

(b) public bodies/statutory authorities; and

(d) many privatised public authorised Lag British Gas,

WHO CAN BE SUED UNDER THE ACT

Convention rights and freedoms will exist in relation to the state, public authorities and bodies exercising public functions.

But will not be directly available as against private individuals or organisations.

You could sue a private individual or company directly under the Act.

It is unsure whether you would be able to directly rely on the Act against a public body in an aspect of its private functions (e.g. as an employer).

HRA 1998, s3

3(1) So far as it is possible to do, primary legislation and

subordinate legislation must be read and given effect in a

way which is compatible with Convention rights.

3(2) This section -

i. applies to primary legislation and subordinate legislation

ii. does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and

iii. does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarded the possibility of revocation) primary legislation prevents removal of the incompatibility.

Section 3 in practice

The House of Lords in the recent case of R V A (A minor) ( June 2001) has demonstrated the importance and constitutional significance of the power which judges now have under section 3 to interpret the words of an Act of Parliament/statue so as to give effect to the rights enshrined in 1998 Act.

You will recall that section 3 of the Act provides that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

Sub-section (2) (b), (c) further provides that a statutory provision remains valid, even where it is not possible to interpret that provision in a way which is consistent with human rights. In such a case the court may make a declaration of incompatibility (such a declaration does not affect the validity of the legislation under question). However, a declaration under section 4 allows Parliament to consider whether urgent action is needed to alter the offending provision by remedial order under section 10, and Schedule 2 of the Act.

In R v A. The defendant was accused of rape. His defence was that the complainant consented to sex.

He wanted to tell the jury that there was a previous consenting sexual relationship between the complainant and himself. However section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits such evidence being adduced so as to protect complainants from questioning about their sexual history, except in very limited circumstances. The House of Lords held that a trial judge had a power under section 3 of the 1998 Act to allow such evidence to be adduced if, and only if, its exclusion would result in an unfair trial for the accused.

The question was whether such a bold and positive interpretation was consistent with Section 41, as seems to be the requirement of section3 of the 1998 Act.

Lord Steyn giving judgement held that on “ordinary methods of interpretation”, section 41 did stop the trial judge from allowing the accused/defendant to adduce or use evidence of past sexual conduct in a rape trial. However, Lord Steyn went on to add that section 3 of the 1998 Act “applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings”. The court had an overriding duty to interpret section 41 in a way which protects the accuses human rights. Of course this begs the question, what about the victims right to privacy under Article 8 of the Convention. However, the right to a fair trail must take precedence over such a right, if one existed in this case.

(1) Interpretation of Non Convention Law

Therefore private individuals or organisations will not escape the protection or obligations under the Act. For although private disputes cannot be directly challenged under the Act, the Act itself provides that wherever it is possible to do so all parent and subordinate legislation (whenever passed) should be read and given effect in a way which is compatible with convention rights. Thus courts and tribunals will be able to give effect to the Convention in private disputes brought under other legislation.

Where the courts interpret legislation in this way it would not affect the validity, operation or enforcement of the offending statute, unless the legislation is subordinate, or delegated legislation rather than primary, or parent legislation and the primary legislation does not prohibits the removal of the incompatibility.

Where the offending legislation is primary legislation the High Court has no power to quash it.

Where the offending legislation is not primary, or parent legislation the High Court will have the power to quash it, subject to the above (S.3(2)©).

Where Conventions rights are infringed by public, bodies citizens affected by such decisions will be able to sue public bodies on the grounds that, the action taken is incompatible with their human rights/Convention rights. Consequently the Act will radically alter the current law and practice in all areas – without exception.

WHO CAN SUE

A person who is a victim of an unlawful act/decision by a public authority.

However, only a “victim” can bring proceedings under the Act (Article 25 ECHR;

Section 7(1)): define a “victim” as “any person, non-governmental organisation, a group of individuals who are meant to be a victim of a violation” of Convention rights).

Put simply a victim is any person or non-governmental organisation directly affected by an alleged breach of a Convention right or who anticipates an imminent breach. One of the most controversial aspects of Act.

This definition of victim includes person(s) indirectly affected by acts against victims who are directly affected (e.g. children, and members of a victim’s household or contracting parties if the damage is foreseeable).

But note Application 10390/83 v. UK[2]

A NOTE TO PRACTITIONERS

Once the Act is fully enforce human rights will no long be the province of the specialists.

The implications will have to be understood by all whom it may affect.

Practitioners will have to consider, firstly, does this matter involve a convention of principle?

For example, although employees outside the public sector will be unable to rely directly on the Convention, a tribunal could rule a dismissal unfair because it violates a Convention right.

Second, what is the relevant common law principle or statutory or other law.

Courts may also rise issues themselves and judges will be expected to be familiar with the background law and decisions of the European Court of Human Rights and the ECJ.

STRASBOURG CASE LAW

The Act will introduce European Human Rights case Law in the UK and will require a new way of thinking.

All courts and tribunals including the House of Lords, in determining questions arising under the Act in connection with the ECHR must take into account:

(a) judgements of the European Court of Human Rights,

(b) the decisions of the Committee of Ministers and

(c) the opinions of the European Commission of Human Rights so far as they may be relevant to the proceedings – Section 2.

The courts will be bound to interpret legislation so as to uphold fundamental Convention rights (section 3; R V A).

This rule of interpretation will be applied to all legislation whether passed before or after the Act.

A considerable body of court decisions in breach of the Convention will inevitably have to be revisited and probably overruled, in light of Strasbourg case law, when the are referred to or when similar issue comes before the courts under the Act.

Advice practitioners will be required to advise on human rights principles and will therefore need to be familiar with Strasbourg’s case law and adopt a new approach to conducting proceedings.

The courts, however, can be more generous than Strasbourg in its interpretation, in that Strasbourg case law is not a ceiling but a starting point.

Failure to take account of the Convention, when making decisions will leave public bodies, including the courts, open to direct challenge under the Act.

Section 3 is important it permits courts to uphold Convention rights where primary or subordinate legislation is incompatible with those rights.

Courts must interpret the subordinate legislation as operating in favour of Convention rights, unless the parent legislation prevents the removal of the incompatibility.

This power to strike down subordinate legislation is not expressed but implied in the Act, and the courts would have to rationalise in this way.

WHAT IS A PUBLIC AUTHORITY

This is a grey area. The definition of a public authority includes bodies subject to judicial review. For example bodies which are established by an Act of Parliament or subordinate legislation.

Bodies which are performing public functions which Parliament have made subject to regulation, or may well have had to set-up - eg mobile phone and telephone companies for example[3] financial watchdogs in the city and certain professional bodies.

Bodies previously in the public sector eg British Gas.

As indicated in the Act itself. The following are just some examples of public bodies, where they perform in public functions

o Home Office

o Immigration Appeals Tribunal

o Police

o Local authorities

o Detention Centres

o Banks;

o Other bodies regulated by Acts of Parliament; statutory instruments

o Public aided schools;

o The courts.

Bodies that perform functions that the government or local government would otherwise perform; and

Bodies supported by statutory powers or penalties.

The Act covers a public bodies activities private and public functions, including

Drafting rules and regulations

Internal staff and personnel issues (e.g. employee matters)

Administrative procedures

Decision making

Policy implementation

Interaction with members of the public

DECLARATION OF INCOMPATIBILITY

Parent legislation whenever passed, if incompatible with Convention rights, must be interpreted and applied as enacted.

But a victim can ask the higher courts (High Court and the Court of Appeal and House of Lords) to make a declaration of incompatibility (S.4 of Act).

Under section 4 the court is bound to grant the declaration.

This is something the European Court of Human Rights at Strasbourg could not do.

However, the Act itself cannot be declared incompatible, only the offending provision.

A declaration of incompatibility would not affect the continued validity of the legislation, which may continue to be enforced.

But a person affected may then bring proceedings against the government or Crown on the grounds that the action taken is incompatible with his or her human rights. But note the sweeping defence available to public bodies under section 6 (2) (a), (b) of the Act.

INTERVENTION OF THE CROWN

Where a declaration of incompatibility is contemplated, the Crown is entitled to notice (section 5 of Act) so as to consider whether to take remedial action in the form of a Remedial Order.

It was expected that a declaration of incompatibility would be an automatic trigger for parliamentary action amending the offending legislation.

This would open the way for a speedy review of the offending provisions.

Neither House of Parliament or persons exercising function in connection with Parliament can be subject to a ruling of incompatibility.

STATEMENT OF COMPATIBILITY

Another important provision of The Act the requirement that a minister of the Crown in charge of a going before Parliament Bill, make a ‘Statement of Compatibility’, before the Bill gets a second reading or make a statement that the government is unable to make such a statement of compatibility (s. 19 of the Act).

THE CONVENTION ARTICLES

Article 1 to the First Protocol ECHR– Right not have unlawful interference with one’s Property (note there are two other Articles to the First Protocol, for which see the Act)

Article 2 – Right to life

Article 3 - Right not to be subjected to inhumane or degrading treatment

Article 4 –Prohibition of slavery and torture

Article 5 – Right to Liberty and Security

Article 6 – Right to a Fair Trial:

Everyone is entitled to a fair public hearing within a reasonable time by an independent and impartial tribunal (whether civil or criminal) (and without discrimination - Act 14).

In the context of a family case the European Court of Human Rights held as far as a fair hearing was concerned that judicial review is not a sufficient remedy where parents wanted to challenge the local authority’s power to restrict access to their child in care 1987 [4]. The nature of the decision was such that Article 6 required a full hearing on the merits.

Article 8 – Right to respect of private life and family life - limited to right to be allowed part-time work.

Article 9 – Freedom of Religion – e.g. certain groups right to worship in their own unique way.

Article 10 – Freedom of Expression: Case law under Article 10 shows that there must be a pressing social need for an employer to dismiss on grounds of religious[5]. The Court has held that dismissal of teachers holding Communist beliefs was a breach of Article 10.

The Court ruled “…expression as enshrined in Article 10, is subject to a number of exceptions which however must be convincingly established”[6].

Similar arguments can be advanced for the right to worship on a particular day, and so not to be dismissed from employment for refusing to work on a particular day, or put another way, choosing to express ones religious beliefs by not working on that day.

Article 11 - Freedom of assembly and association.

Article 12 - Right of Marry according to national laws

Article 13 - Not incorporated in the Act- but the courts can consider this right in proceedings (confirmed by a House of Commons statement on the Act).

Article 14 – The right not to be discriminated against or victimised on any way whatsoever in connection with any other Convention right (i.e. you cannot claim under Article 14 unless it is being alleged that some other Convention right was being breach due to race, sex, religion, sexuality, life style etc.).

Note however that not all rights are absolute under the ECHR

there are some circumstances where interference with non-absolute is allowed. Where it is objectively justified, that is it must be:

(a) reasonable

(b) assessed according to its aims and effects

(d) in pursuance of a legitimate aim, (ie it must be prescribed to law).

(e) it must be shown that there is a relationship of proportionality between the aims employed and the aims sought to be achieved.

THE PRIVATE -VS- PUBLIC DIVIDE

Sections 7(1)(b), 7 (5) and Section 3 require that the courts decide all cases, where possible, in compliance with the Act.

A broad interpretation of these sections will require that the courts give effect to the Convention rights under existing legislation, which affects the rights between private individuals as well as between private individuals and public bodies.

This would create horizontal application (i.e. between private individuals).

That is rights against private individuals would be enforced under the Act, not directly, but by interpreting current laws using Convention principles.

The Strasbourg case law/judgements lends support for this wide application of human rights/or more accurately human rights ‘principles’

The ECofHR require that all law be given a purposeful and theological interpretation (i.e. the aims of the particular human rights principle(s)).

This means that, the Convention demands, where possible, lawyers/judges give an interpretation consistent with its principles.

If approached in this way, Jonathan Hooper, Human Rights Project Manager of Justice, argues that the Convention will inevitably create obligations and private litigation.

Remedies/Compensation under the Act

A court may make a public declaration of the Crown’s violation of Convention rights.

Award monetary compensation/damages of “just satisfaction” (but this is discretionary where the breach is only of a Convention right; but where the Convention is relied on indirectly in related proceedings, e.g. in tort or contract damages is as of right) .

The court can also grant such relief or remedy within its power, as it considers just and appropriate.

This would include apart from financial loss, non-financial loss (e.g. the acquittal of an accused) and other expenses.

Examples of non-financial loss awards would be in respect of matters like pain and suffering, physical or mental injury, including feelings of anxiety, helplessness, frustration or lost opportunity and the like.

Other expenses would include legal costs, and loss resulting from the unlawful act.

Note, however, no damages may be awarded in respect of any act or decision by a court.

LIMITATION PERIOD

The cut-off date for bringing legal proceedings under the Act is one year from the date of the alleged breach.

It may be that, as in employment cases, where there is an internal appeal, time does not begin to run until the appeal is decided[7].

There is no time limit for using the Act to defend a claim brought by another.

One-year time limit does not apply to a non- Human Rights Act claim where the Act is used to support such a claim (e.g. in tort, contract).

Doctrine of Margin of Appreciation