“The Human Rights Act 1998… has transformed our system of law into one of positive rights, responsibilities and freedoms, where before we had only the freedom to do what was not prohibited . . . It has breathed new life into the relationship between Parliament, Government and the Judiciary . . .”
Critically examine the quotation in terms of the effect and impact of the Human Rights Act 1998 on the English Legal System, particularly with respect to how the law is now interpreted.
In seeking to be able to critically examine the above quotation in terms of the effect and impact of the Human Rights Act (HRA) 1998 upon the English Legal System – particularly with regards to how the domestic law is now interpreted – this essay will consider the background to the enactment of the HRA 1998 by the government and the reasons why and how this transposed the European Convention on Human Rights (ECHR) 1950 into domestic law. Moreover, this paper will also consider how domestic courts are supposed to interpret domestic law in keeping with the ECHR 1950 through the enactment and implementation of the HRA 1998 by the UK Parliament. Finally, this essay will seek to conclude with a summary of the key points derived from this discussion with a view to critically examine the above quotation in terms of the effect and impact of the HRA 1998 upon the English Legal System – particularly regarding how the domestic law is interpreted.
With this in mind, it is to be appreciated that the enactment and implementation of the HRA 1998 was a key part of the platform upon which the Labour Party came to in government in the UK that began life as a consultation paper written by Labour MPs Jack Straw and Paul Boateng in 1997 in the form of the government’s white paper, ‘Rights Brought Home’. This was, a prominent foundation upon which Tony Blair’s goal of creating a ‘human rights culture’ in which “awareness of human rights will be enhanced in our [British] society” was built as it was predicted to affect lawyers practising in many fields and to have a substantial impact on the British criminal justice system. Therefore, the enactment of the European Convention on Human Rights (ECHR) 1950 into domestic law in the form of the HRA 1998 has conferred a large number of important rights upon the people within UK society, including the rights to life, liberty and security.
Whilst the UK became a signatory to the ECHR 1950 many years ago, however, the UK Parliament did not incorporate it until the enactment of HRA 1998. Therefore, the ECHR 1950 was not, prior to the HRA 1998’s enactment, directly relevant to statutory interpretation because it could not be a source of rights or obligations or used for statutory interpretation. As a result, the HRA 1998 has given effect to the rights contained in the ECHR 1950 so they can be enforced in our domestic courts instead of solely through the exercise of the right of an individual petition to the Strasbourg Court so the domestic courts can consider the case law of the Strasbourg court, but are not bound to follow it under section 2 of the HRA 1998. On this basis, parliamentary sovereignty is preserved so that the courts are unable to simply strike down statutes that infringe ECHR 1950 rights because otherwise the courts’ interpretation of the law and of what was incompatible with the ECHR 1950 would always prevail. With this in mind, two different techniques are employed by the domestic courts with – (a) section 3 of the HRA 1998 having imposed on the courts an obligation to interpret domestic legislation in a manner compatible with ECHR 1950 rights as far as possible; and (b) the declaration of incompatibility that means if the courts cannot construe a statute compatibly with the ECHR 1950 they may make such a declaration.
Ostensibly, however, under the HRA 1998 it is for Parliament to enact legislation that violates ECHR 1950 rights if it wishes to do so and may also specifically domestic legislation applies because the courts could not then interpret the statute in a manner compatible with the ECHR 1950. But where such legislation post-dates the HRA 1998 it is to be appreciated that it may prove to be that the more transparent response of the courts is to suggest to Parliament its understanding of what is and is not ECHR 1950-compliant is in error with the issuing of a declaration of incompatibility as a last resort. Domestic courts would still, however, be left to make a declaration of incompatibility – although it need not do so since it merely provides a means of communicating to Parliament the courts’ view legislation violates the ECHR 1950. But since interpretation of ECHR 1950 rights is dynamic, special problems may arise for member states legislation. This is because, for example, whilst legislation may be passed in 2000 that fully respects all ECHR 1950 rights as they are then understood, jurisprudence may move on so such a conclusion is no longer correct. Therefore, section 3 of the HRA 1998 will require the courts to construe legislation in the context of ECHR 1950 rights as they stand at the time of a judgement so this effectively means that the understanding of statutes may change as interpretations of the rights it touches change.
The ‘retrospectivity’ of section 3 of the HRA 1998 was then further clarified by the decision in R (Hurst) v. HM Coroner for Northern District Council because it was held here section 3 could have a limited retrospective effect and that, since section 3 applied the court’s new interpretative power to legislation, the court could give a ECHR 1950 compliant interpretation. However, in the case of Cullen v. Chief Constable of the RUC the House of Lords held failure to give reasons for delaying an arrested person’s right to access to a solicitor, as required under section 15 of the Prevention of Terrorism (Temporary Provisions) Act 1989, did not law to a remedy in damages. But the majority of their Lordships held here it was not enough Parliament simply imposed the duty for the protection of a limited class of the public because it also had to be shown any breach of the duty was calculated to occasion loss of a kind the law normally awarded damages for. Nevertheless, Lords Bingham and Steyn dissented, feeling the HRA 1998 was passed with the clear intention of creating private law rights because presumably the rationale of the case would be used to deny the award of just satisfaction. In addition, in the Court of Appeal’s decision in Cumming & others v. Chief Constable of Northumbria Police it was held that, in assessing whether the police had reasonable grounds to arrest a person, there was a need to consider Article 5 of the ECHR 1950 even though the arrest took place before the HRA 1998 came into operation in keeping with the remit of section 3 of the Act.
Nevertheless, as has already been alluded to, it is to be appreciated that problems can arise from the fact the ECHR 1950 also uses concepts that are linked to societal values that change from time to time that has proved difficult for national courts and public authorities to follow with a consistent band of opinion. As a result, for example, the Strasbourg Court’s attitude to transsexuals has changed. By way of illustration, whilst at one time no violation was involved in a failure to change the birth certificate of a transsexual, in the case of Goodwin v. United Kingdom it was held there was no justification for barring the legal recognition of a transsexual under any circumstances within the UK’s margin of appreciation in the circumstances. Therefore, with a view to reaching this conclusion, the Strasbourg Court looked to account for the evidence of a continuing international trend in favour of the increased social acceptance and legal recognition of transsexuals as having rights in keeping with the remit of the ECHR 1950.
The judiciary, therefore, needs to look to construe domestic legislation in accordance with section 3(1) of the HRA 1998 even if it is obvious at the time when the particular Act was passed that no-one had ever heard of the ECHR 1950 which may also add to the difficulties. For example, in the case of R v. A (No.2) an appeal was made by the defendant to a charge of rape regarding whether certain evidence concerning the sexual behaviour of the complainant would be admissible. However, it is to be appreciated that section 41 of the Youth Justice & Criminal Evidence Act 1999 served to provide for the prohibition of the admission of such evidence unless the prior sexual behaviour was so similar to that of the complainant it could not be coincidence. On this basis, it was held by the House of Lords that the defendant’s right to a fair trial under Article 6 of the HRA 1998 (ECHR 1950) would be considered to be violated if such evidence were excluded. With this in mind, the question in such circumstances then arose in relation to as to whether section 41 of the YJCEA 1999 could then be construed so as to be able to prevent any violation of the defendant’s rights amidst differing judicial views.
Therefore, the enactment and implementation of the HRA 1998 has served to impact upon the English legal system by meaning the judiciary have had to articulate the relevant principles of law and statutory interpretation to reflect the constitutional relationship between the judiciary, legislature and executive and impose a degree of order to the law. On this basis, the first question for any court will be to determine whether a particular legislative provision would serve to impose a persuasive burden on an accused due to the application of conventional canons of statutory interpretation. It will then be for a specific court to consider as to whether that specific provision actually serves to derogate from the presumption of innocence. Then, if that question is answered in the negative, Article 6(2) of the ECHR 1950 regarding the exceptions to the right to a fair trial is not engaged at all but it is for the court to address the issues of justification regarding whether the interference with the right to a fair trial serves to add sufficient weight to the various interests relevant to a particular case to achieve a specific aim.
Nevertheless, it is arguable that previous courts have been somewhat overzealous in finding potential breaches of Article 6 of the ECHR 1950 and resorted too often to section 3 of the HRA 1998 to impose only an evidential burden on a defendant. But then it is also to be appreciated that the demands of democratic deference are also at times rather contradictory. This is because it has been recognised that, whilst deference requires courts not to strain statutory language to distort the original intention, Parliament has itself declared that original legislative intention is just one interpretive criterion. As a result, the original legislative intention must cede priority to the need to interpret legislation in a manner compatible with the ECHR 1950 rights. However, if Parliament has legislated unequivocally in violation of an ECHR 1950 right, then the proper job of the courts may be more limited to alert Parliament to this state of affairs through a declaration of incompatibility.
To conclude, it is clear the HRA 1998’s enactment and implementation has conferred a large number of important rights upon the UK’s people – including the right to a fair trial under Article 6 of the Act – so they can be enforced domestically instead of solely through the Strasbourg Courts. Nevertheless, it is still to be appreciated that parliamentary sovereignty has been preserved so that the courts are unable to simply strike down statutes that infringe ECHR 1950 rights. In addition, for example, Article 6 of the ECHR 1950 regarding the right to a fair trial has generated more case law in the European Court of Human Rights than any other Article. As a result, the domestic courts have had to articulate the relevant principles of law and statutory interpretation to reflect the constitutional relationship between the judiciary, legislature and executive and imposing a degree of order to the law. Therefore, despite the fact that demands of democratic deference are rather contradictory because, whilst deference requires the judiciary not to strain statutory language to distort the original intention, Parliament has itself declared the original legislative intention as one interpretive criterion among others to interpret legislation in a manner compatible with the ECHR 1950 rights in the English legal system so as to bring greater order to the law.
‘Halsbury’s Laws of England’ Lexis Nexis, Butterworths (2008)
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Dickens. J ‘Being ‘The Epitome Of Reason’: The Challenges For Lawyers & Social Workers In Child Care Proceedings’ (2005) 19 IJLP&F 73
Fitzpatrick. B ‘Court of Appeal – Reverse Burden & Article 6(2) of the European Convention on Human Rights: General Guidance’ (2005) 69 JoCL 16
Fitzpatrick. B ‘House of Lords: Reverse Burden & Article 6(2) of the European Convention on Human Rights: Drunk in Charge; Terrorism Offence’ (2005) 69(6) JoCL 478
McIntosh. D ‘Rights The Way Through – Whatever Your Place or Area of Practice, If You Are a Solicitor, The Human rights Act 1998 Has Direct Relevance’ (1999) 96 Law Society Gazette 14
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Straw. J & Boateng. P ‘Rights Brought Home’ Government White Paper (1997)
Table Of Cases
Beaulane Properties Limited v. Palmer  EWHC 1460
Cullen v. Chief Constable of the RUC  1 WLR 1763
Culnane v. Morris  2 All ER 149
Cumming & others v. Chief Constable of Northumbria Police  EWCA Civ 1844
Ghaidan v. Godin-Mendoza  UKHL 30
Goodwin v. United Kingdom  35 EHRR 447
R v. Secretary of State for the Home Department ex p. Brind  AC 696
R (Carson) v. Secretary of State for Work & Pensions  UKHL 37
R (Hurst) v. HM Coroner for Northern District Council  EWCA Civ. 890
R (Khail) v. Home Secretary  EWHC 2139
Soering v. UK  11 EHRR 439
X Council v. B (Emergency Protection Orders)  EWHC 2015
Table Of Statutes
European Convention on Human Rights 1950
Human Rights Act 1998
Land Registration Act 2002
Prevention of Terrorism (Temporary Provisions) Act 1989
Youth Justice & Criminal Evidence Act 1999
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