‘The Human Rights Act 1998 does not go far enough to protect the rights of individuals in the UK.’ Do you agree with this statement? Why?
rodrigo | January 25, 2013
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This essay examines whether the Human Rights Act 1998 sufficiently protects individuals’ rights in the UK. The essay considers the declaration of incompatibility as a major limitation of the Human Rights Act using the Belmarsh detention case. Despite this limitation, I argue that based on the overall case law and reports on the Human Rights Act, it is overwhelming apparent that the Act goes far enough to provide individuals in the UK with protection of their rights.
The Human Rights Act 1998 (HRA), in force from 2 October 2000, has incorporated civil rights of the European Convention of Human Rights (ECHR) into UK law. As the first legislation attempting to protect human rights at home, it is important to explore its success in the last decade. In order to assess whether the HRA sufficiently protects individuals’ rights in the UK, this essay will consider the objective of the HRA and then analyse the case of A and Others v. Secretary of State for the Home Department (2004) to demonstrate the caveat of declarations of incompatibility. This case has particularly posed a challenge to the effectiveness of the HRA in upholding rights as fundamental. However, successes of the HRA provide overwhelming evidence that the HRA does go far enough to protect the rights of individuals in the UK.
Bringing Rights Home
The purpose of the HRA was to allow UK courts to provide a remedy to violations of rights in the ECHR and thereby avoid the cost of lengthy court cases at the European Court of Human Rights in Strasbourg. Not only did the HRA allow UK courts to consider relevant jurisprudence in Strasbourg (s2), but the Act also imposed obligations on public authorities to uphold Convention Rights (s6). The HRA is thus a domestic check of rights that links into the global human rights movement. Gearty argues that the language of civil liberties is more vulnerable than the language of human rights due to no requirement to be compatible (2005, pp. 27). Consequently, to use the phrase of the White Paper published in precedence of the HRA, it appears that the HRA has made an attempt at “bringing rights home” (Home Office, 1997).
Declarations of Incompatibility
Yet one of the limitations of the HRA can be clearly demonstrated particularly through the case of A and others v. Secretary of State for the Home Department (2004). While it held that indefinite detention of foreign prisoners in Belmarsh without trial was incompatible with Article 5(1) of ECHR because it was discriminatory on the grounds of nationality, this decision was only a declaration of incompatibility (s4). With just the ability to put political pressure on producing legislation compatible with human rights law, the judgement had no legal effect as the HRA (s4 (6a)) does not grant courts the power to invalidate Acts of Parliament. Furthermore, Lord Hoffman dissented with the opinion that the case overall was incompatible because the precondition of a ‘threat to the life of the nation’ was not present. It should also be noted that Article 6 of the ECHR outlining the right to a fair trial within ‘reasonable time’ was not considered in the judgement. This suggests that the courts only have an interpretative obligation allowing Parliament to remain supreme. The effectiveness of declarations of incompatibility is additionally questioned as the government replaced the Anti-Terrorism Crime and Security Act 2001 with the Prevention of Terrorism Act 2005, introducing ‘control orders’ that apply to both Britons and non-nationals. Fenwick claims that due to lack of judicial power, the government are able to pass such legislation restricting civil rights without fear of the law being struck down (2002, pp.194). The case at hand seemingly supports this perspective that rights can still be restricted, bringing into question of whether the HRA is committed to the idea of human rights as absolute.
Successes through the HRA
However, other cases have proved to be far more successful in deeming the HRA as effective in protecting individuals’ rights in the UK. Although Parliament is free to ignore Declarations of Incompatibility, Klug (2009) observes that Parliament has responded to all 18 Declarations of Incompatibility that have been made and not been overturned on appeal. For example, in Bellinger v. Bellinger (2003), the courts declared that not recognising gender change of post-operative transsexuals in marriage law is incompatible with Articles 8 and 12 of ECHR. This resulted in Parliament in passing the Gender Recognition Act 2004. Likewise, using the right to private and family life, Diane Blood won her case to have her children’s father recognised legally despite being conceived after his death (O’Loan, 2009: 78). The result was a change in the Human Fertilisation and Embryology Act 1990, which may have impacted approximately 50 families (Dyer, 2003). This demonstrates the ‘dialogue’ encouraged by the HRA between the courts and Parliament is sufficiently balanced where the HRA is properly implemented and does not fall victim to the will of politicians. This is supported by Gearty (2006) who states that cases such as the Belmarsh case as discussed previously indicates the balance is perfect because the strength is that judges are ‘part of a discussion’ rather than overriding legislation. In this sense, there is sufficient scope for the HRA to safeguard rights of individuals as fundamental and absolute.
On a similar note, Mathews et al. (2008) found numerous individuals, from all walks of life, have used the language of the HRA to improve the experience of public services without any direct remedy from the courts. The Equality and Human Rights Commission’s Inquiry also ascertained that the Human Rights Act has provided a rights-based framework for public services including in the NHS (O’Loan, 2009: 38). While Gearty (2006) suggests the possibility of a social and economic bill of rights similar to the HRA in the future, it seems there may not be a need given that the reach of the HRA is extensive.
To conclude, on the whole, the HRA has gone far as possible to protect the rights of individuals in the UK because it is overwhelmingly evident that the HRA is central to Britain’s human rights culture. It is used as a tool to protect individuals’ rights both in the courts and in wider society. The HRA has no doubt been challenged by cases such as those involving terrorist suspects as discussed in this essay. The power of courts to issue a declaration of incompatibility merely appears to be of a political nature. However, this has not been abused by the government by ignoring such declarations. Although the legal changes enacted as a result of the Belmarsh case had little effect in guaranteeing civil rights, other case law surrounding the HRA shows that Parliament has responded effectively to make legislation compatible with the rights in the ECHR.
A and Others v. Secretary of State for the Home Department (2004) UKHL 45. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2007/45.html [Accessed: 04/01/2013].
Bellinger v. Bellinger (2003) UKHL 21. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2003/21.html [Accessed: 04/01/2013].
Dyer, C. (19 September 2003) Diane Blood Law Victory gives her Sons their ‘Legal’ Father. [Internet] Available from: http://www.guardian.co.uk/science/2003/sep/19/genetics.uknews [Accessed: 04/01/2013].
European Convention of Human Rights (1950) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 268-277.
Fenwick, H. (2002) Civil Liberties and Human Rights. 3rd Edition. London: Cavendish Publishing.
Gearty, C. (2005) “11 September 2001, Counter-Terrorism, and the Human Rights Act” in Journal of Law and Society. Vol. 32, No. 1. pp. 18-33.
Gearty, C. (2006) Language of Fear is Difficult to Beat. [Internet] Available from: http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/SocialistLawyer.pdf [Accessed: 02/01/2013].
Home Office (1997) Rights Brought Home: The Human Rights Bill. The Stationary Office.
Human Rights Act (1998) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 489-501.
Klug, F. (10 December 2009) Promoting and Protecting Human Rights. University of Westminster Law School.
Matthews, L. et al. (2008) The Human Rights Act – Changing Lives. 2nd Edition. London: The British Institute of Human Rights.
O’Loan, D. N. (2009) Human Rights Inquiry: The Report of the Equality and Human Rights Commission. Equality and Human Rights Commission
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Category: Free Essays, Law
The Human Rights Act 1998
rodrigo | May 1, 2014
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This essay will outline the main attributes of the Human Rights Act 1998 and seek to argue that it does not go far enough to protect an individual’s rights. It will explain the difference between the procedural and substantive protection on offer to an individual and will show that whilst on a procedural level the rights appear to be protected, this is in fact not the case. The diversity of academic commentary on this topic will be explained to further enhance the essay’s argument that more is required in order to adequately protect an individual’s rights.
The majority of the Human Rights Act 1998 (HRA) came into force in the UK on 2 October 2000 and enabled individuals to rely upon their European Convention on Human Courts (ECHR) rights in the domestic courts. There is a clear divide amongst the academics as to whether the Act has gone far enough to protect the rights of individuals in the UK. Whilst there is no denying that the HRA has afforded British residents the opportunity to use their rights in the courts, whether this amounts to a true protection of their rights will now be debated.
The Human Rights Act 1998
One of the main attractions of the HRA is that it allows individuals to pursue remedies against public organisations/bodies in the domestic courts as opposed to going to Strasbourg (Section 6, HRA). Before the HRA, if an individual alleged that one of their Convention rights had been breached, then the only course of action available to them was to go to the European Court of Human Rights in Strasbourg. The HRA makes it illegal for any public body or organisation to breach an individual’s Convention rights (Section 6, HRA). Additionally, judges are now required to consider “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.” (Section 3(1), HRA). If this is not possible, then judges are under a duty to issue a declaration of incompatibility (Sections 4 and 10, HRA). It is important to note the limitation of their powers and they are no power to strike down the primary legislation, despite its incompatibility. One of the reasons for this is constitutionally, which is to maintain Parliament’s sovereign nature. This is one of the key criticisms facing the HRA as arguably it affords little protection to individuals whose rights are being violated due to a piece of legislation being incompatible with their ECHR rights.
However, the statistics show that out of 28 cases where a declaration of incompatibility was issued, only case remains open for remedy (Ministry of Justice, 2012). This one exception is the controversial case of Chester v Secretary of State for Justice  EWCA Civ 1439 which involves the right of prisoners to vote in elections. It has become something of a political football, but arguably the statistic alone shows that Parliament has taken the issue of incompatibility seriously as remedies have been provided in the other 27 cases. The other remedy available is the award of damages under section 8(1) of HRA.
Rights Protected by HRA
One of the over-arching principles of the HRA is that public bodies treat individuals equally and with respect. The Act allows the rights under the ECHR to be given effect into UK law and ensures individuals enjoy rights such as right to life (Article 2), the right not to be tortured (Article 3) and the right to a private and family life (Article 8). However, these rights have been used in various areas of law by lawyers such as planning applications (Coster v UK  33 EHRR 20).
Whilst this appears to be positive protection of individual rights, there are numerous examples of breaches of the Convention rights since the introduction of the HRA. One such instance is the right to privacy being curtailed through the Regulation of Investigatory Powers Act 2000 which has permitted government at the local level to carry out covert surveillance. Although on the other side of the argument, it can be shown that the introduction of HRA has allowed individuals to successfully pursue claims of invasion of privacy, not permitted before the HRA. These include Max Mosley and Naomi Campbell (Max Mosley v News Group Newspapers Limited  EWHCC 177 and Campbell v Mirror Group Newspapers Ltd  UKHL 22).
Academics are divided in their opinions regarding the effect of the HRA on the protection of individual rights. On the one hand, some academics perceive the introduction of the HRA to be a positive development in human rights in creating an expectation of privacy (Fenwick, 2013), whilst others would disagrees with this contention and point to other areas of law where rights are being violated. One such example is Article 6 right to a fair trial, where Hoyano argues that the increased use of hearsay and bad character evidence are ensuring that individuals struggle to obtain fair trials in the UK (Hoyano, 2014). Furthermore, it has been suggested that, “The Act is widely blamed for administrative and judicial decisions that have been caricatured as privileging the rights of criminals and terrorists.” (Wadham, et al., 2011, p 14). Overall, the Act has been controversial and reforms are most likely in the future.
To conclude, the HRA requires all courts and tribunals in the UK to interpret legislation in accordance with the Convention rights which primarily ensures a borderline protection of rights on a procedural level. Furthermore, section 6(1) of HRA makes it unlawful for a public body to act in a way to contravene Convention rights and therefore all public duties are now under a duty to act in accordance with an individual’s Convention rights. However, a declaration of incompatibility can be sought and such a remedy is a first in the UK. Individuals still have the right to pursue their claim in Strasbourg and the European Court of Human Rights remains the final point of appeal in allegations of breach of human rights. In this respect, it can be argued that an individual’s rights are protected in a procedural sense as they can now pursue remedies in the domestic courts which is a far easier and cheaper solution. However, on a substantive level, there are criticisms that the Act does not far enough and instead human rights are curtailed. The presence of such violations ensure that the Act does not adequately protect rights, although arguably it is a significant step in the right direction.
Fenwick, D & Fenwick, H 2013 ‘The Changing face of protection for individual privacy against the press: Leveson, the Royal Charter and tort liability,’ International Review of Law, Computers & Technology, vol 27, no 3, 1 November 2013, pp. 241-279.
Hoyano, L. 2014 ‘What is balanced on the scales of justice? In search of the essence of the right to a fair trial’ Criminal Law Review vol 1, pp. 4-29.
Wadham, J., Mountfield, H., Prochaska, E., Brown, C., 2011. Blackstone’s Guide to the Human Rights Act 1998. 6th ed. Oxford: OUP
Campbell v Mirror Group Newspapers Ltd  UKHL 22
Coster v UK  33 EHRR 20
Chester v Secretary of State for Justice  EWCA Civ 1439
Max Mosley v News Group Newspapers Limited  EWHCC 177
Human Rights Act 1998
Regulation of Investigatory Powers Act 2000
Ministry of Justice, 2012. Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government response to human rights judgments 2011-12 [pdf] London: Ministry of Justice. Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217308/responding-human-rights-judgments.pdf [Accessed 3 February 2014]
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