Public Law I : Human Rights

Typical Questions:

1. The Human Rights Act 1998 is an appropriately British compromise between fundamental rights doctrines and parliamentary sovereignty'. Discuss the way in which the Act achieves this compromise. Does it offer an appropriate level of rights protecting in the UK?

2. Do you think that the Human Rights Act 1998 is an appropirate way to protect rights in Britain? Does it give sufficient weight to the traditions of the protection of freedom in Britain? 

Background and History:

Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being

1. Bill of Rights 1689: laid down certain basic rights of all Englishmen reflected from John Locke

2. United Nations: 

• a. Universal Declaration of Rights 1948
• b. Intentational Covenants on Civil & Political Rights and on Social and Economic Rights 1966

3. Council of Europe: Strasbourg

• a. European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR) first ratified by UK in March 1951 and assisted in drafting it.

4. European Union (EU)

5. Human Rights Act 1998: incorporated the ECHR into domestic law as statute

Why is Freedom good?

• 1) BECAUSE IT IS: no need for justification. Freedom derives from the self-evident importance of individuals in a democracy.
• 2) FREEDOM ACHIEVES SOME GOOD PURPOSE: often that purpose is utilitarian (having regard to utility/usefullness/promotion of happiness)

What does it mean to be free?: Do rights protect our freedom or make us free? Is being 'left alone' at the heart of freedom? or is it being 'enabled to be free'?

Two Conceptions of Freedom:

1. Negative Liberty

• a. leave someone alone i.e. not interefer with their attempts of doing things
• b. courts protect people from interference by providing remedies i.e. remedying interference

2. Positive Liberty

• a. Able to do as they wish
• b. courts protect freedom by allowing them to assert rights that would enable them to act

What is the state's role?

1. To protect freedom:

• a. leave people alone
• b. intrude only to protect negative liberty and prevent others interference in others activities

2. To create freedom:

• a. Enable people to be able to do what they wish to do:
• b. to enhance material well-being
• c. freedom requires an end to discrimination
• d. freedom of expression may be said to be enabled by teaching people to express themselves

3. How far should state inteference go to protect and create freedom?

• a. Traditional liberty philosophy i.e. interfere in freedom only to prevent harm to others and leave people free
• b. Theories of social justice: if all people are equal, some people's freedom cannot be great than others and the state should level the freedoms enjoyed by all by eliminating inequality

State Insititutions and Freedom:

1. Parliament: 

• a. Create focussed rules that set out detailed restrictions on freedom (hate sppech) or create particular rights (education, health care etc.)
• b. Constiuents and their MP's: MP's protect the individual freedom of constituents by representing impositions on freedom and arguing for what we want!

2. Executive:

• a. Policing freedom by adminstering law BUT the rise of the bureaucratic state (Webber) has created suspicion of the executive + seems more reliable when undermining/restricting freedom?!!!?

3. Judiciary: 

• a. Dicey suggested the role of the courts was to protect negative liberty. BUT do they protect fundamental rights?

Britiain's Tradition and Concerns:

1. NEGATIVE LIBERTY: traditionally the state has left people alone BUT....

2. There is a growing concern about rights:

• a. historical interest (Magna Cart 1215 and Bill of Rights 1689). Parliament, sovereignty and the courts: the people and problems of access to Parliament (party loyalty etc) AND the rise of public law in which the courts act as the champions of individuals against the other institutions of the state (Judicial Review!). 
• b. the rise of the bureacractic state: centralising tendencies in the exercises of the state and private power gives rise to positive rights against the state (and corporations). There are various regulations that are imposing on and undermining our rights such as the effectiveness of Discrimination legislation in the 1970's, there is a concern that the focus is not necessarily on indivual rights but other motives!!!
• c. the citizen has to spend a LOT of time exhausting the British courts before being able to apply to the European Court of Justice or European Court of Human Rights. 
• d. democracy and minorities: this is an inevitable problem that there will always be a majority who is under represented even if in a democracy!

Changes....

1. The European Influence... ECHR and creation of individual applications

2. HRA 1998, 'Bringing Rights Home': substantive rights incorporated, public authorities bound, Parliament entrenchment and declarations of incompatibility

3. The future.. a new Bill of Rights after leaving the EU?

4. Moved from a negative conception of liberty to a doctrine of positive conception of liberty

5. Parliaments role is protection of individuals and sovereignty, has its sovereignty now eroded? It is now the courts role to protect rights. 

6. Culture of rights created following the positive conception of liberty (the judicial attitude has now become proactive and people in Britain have a 'rights attitutde' when approaching institutions of the state. 

7. Dicey: didnt need a 'statement' to protect rights because adequately protected by Parliament and common law so moved away from classical approach

Does this then mean we PROTECT people's freedom????? Are we FREE?

The European Convention on Human Rights 1950  (ECHR)

and Human Rights Act (HRA) 1998:

2 Europes: Coucil of Europe (Strasbourg and bigger of 2) and European Union:

Council of Europe: Set up in 1949 by 10 European states (now 47) aimed to:

• a. Promote human rights, the rule of law and democracy
• b. Promote European Cultural co-operation (recover humanity following WW2)
• c. Promote Scientific Development

Main institutions:

• a. Committee of Ministers
• b. Secretariat (ensure compliance)
• c. Parliamentary Assembly (gathering of people fostering ambitions)

• 1. Signed in 1950, into force 1953. UK first to sign in March 1951 and assisted in drafting. 
• 2. Revolutionary (at the time) system of enforement (people rather than states bring cases and lodge application direct with European Court of Human Rights so there Euorpean Commission is taken out of the 'weeding' process). 
• 3. Actions between states also and more recently a system of appeals 
• The ECHR's most important rights:
• 1. Right to life
• 2. Freedom from torture
• 3. Freedom from slavery
• 4. Right to personal freedom and security
• 5. Right to a fair trial
• 6. Freedom from retroactive criminal law (rule of law principle)
• 7. Right to private and family life
• 8. Freedom of thought, conscience and religion
• 9. Freedom of expression (1st ammendment in USA)
• 10. Freedom of association
• 11. Right to marry and found a family (controversial)
• 12. Right to an effective rememdy for breach of rights
• 13. Freedom from discrimination
• Supplemented Protocols that can be voluntarily signed: private property, education, free + fair elections, no death penalty

Principles:

1. Effectiveness:  give meaning to articles so as to make the Convention effective

2. Interpretation:  to allow for evolution of the Convention Rights

3. Margin of Appreciation: most problematic. where there is no consensus on the content of a right across the member states, each individual state will be given a degree of freedom/autonomy in interpreting the content of the right. this allows the state to deny rights. In Germany, it may be widely accepted to be gay, but in UK more slower acceptance. degrees of conformity vary country to country. 

4. Proportionality: any permitted restriction on a right must be proportionate to the purpose that it wishes to serve. this is important as some rights are not absolute i.e. right to privacy, right to freedom of expression

Pre- HRA 1998:

• ECHR was binding on the UK government but not in law in the UK courts
• The negative liberty tradition in domestic law (common law courts the protectors of freedom)

Options Pre-HRA 1998:

• Do no more than enforce rights in the UK (rely on ECHR and Common law) remain as it was
• Incorporate convention into domestic law (HRA 1998 enact)
• Create a new, explicitly British Bill of Rights (debating to do this NOW! following Abu Qatada issues etc and Theresa May)

Enforcement of EU law and Human Rights: Parliamentary Sovereignty

• EU law is a competing law making power that, according to case law (Thoburn and Factortame), is supreme to Parliament
• Human Rights (ECHR) incorporates rights as a measure of interpretation by controlling the work of public bodies. HRA 1998 protects parliamentary sovereignty and does NOT supervise Parliament but a 'declaration of incompatibility' can be brought instead. Protection of parliamentary sovereignty. HRA was specifically drafted to protect Parliament and focus of the act is on WHAT PARLIAMENT will do if there is a breach which is CONTRARY to the ECHR. ECHR and HRA are therefore very different in their effect/impact. 

Protecting Parliamentary Sovereignty:

When statutes are incompatible with Convention rights:

Past statutes: interpretation + amend incompatible old legislation

Common law: interpret and amend to comply with rights. courts to obey Parliament and declare incompatibility declarations if cannot interpret as far as possible to comply with HRA. Parliament remains in the driving seat!!! (note the doctrine of implied repeal and its changes post EU!)

Future law: examination before passing legislation by Joint Select Committee on Human Rights. Interpretation and amending incompatible new legislation.

PARLIAMENT ATTEMPTS TO MAINTAIN SOVEREIGN AT ALL STAGES POSSIBLE!!!!

Subjecting Public Bodies to the Convention: interpretation and the power to nullify their actions! 

Proportionality: debatable whether this exists. Is the legislaitve object important enough to require an interference with a convention right? Is the method of interference rationally related to the right? Are the means used to undermine the right no more than is necessary to achieve its objective? Object of doctrine of proportionality is within the domestic courts scope!!! 

THE HUMAN RIGHTS ACT 1998:

Section 1: not all rights incorporated (but most of the more well known substantial rights were!

Section 2: domestic judicial interpretation- must only 'take into account' Strasbourg case law

Section 3: courts must seek compatible interpretation (Lord Nicholls in Ghaidan v Godin-Mendoza 2004:'Parliament cannot have intended that in the discharge of this extended interpretive function, the courts should adopt a meaning inconsistent with a fundamental feature of legislation.That would be to cross the constitution boundary section 3 seeks to preserve. Parliament has retained the right to enact legislation in terms which are not convention compliant.'

Section 4: judicial declarations of incomptaibility can be made where British legislation breaches a convention right but legislation remains valid. The declaration brings in the prospect of a remedial order (section 10) where ministers may amend legislation by laying orders before Parliament (secondary legislative procedure). The ordinary procedure for enacting primary legislation is avoided. If the ECHR finds a breach of HRA, the obligation to remedy a defect still remains with the state (Parliamentary Sovereignty) or if the UK does nothing about failing to comply (i.e. prisoners voting) then the Council COULD expell UK but VERY UNLIKELY. Worse scenario would be that the UK would have to pay damages!

EU Charter of Fundamental Rights 2000

• Proclaimed in December 2000
• Incorporated into the EU Constitutional Treaty in 2004 but failed- not ratified by several states so ended up with amended and legally enforceable Lisbon Treaty 2007 (effective as of 2009). 
• UK has an OPT-OUT enforceability (no compliance to Charter) but the Charter BINDS the EU insitutions (by virtue of European Court of Justice). 

EU and ECHR post Lisbon Treaty:

Incorporating the ECHR into EU law...the consquences of incorporation:

- right to individual petition

- decisions and actions of EU institutions

- changing EU law to be Human Rights compliant: the power of ECtHR to strike out EU law

Equality and Human Rights Commission's (EHRC's) inquiry into the effectiveness of the Human Rights Act:

• One principal theme to emerge was the distorted reporting of human rights in the media by focusing on unrepresentative, high-profile cases and the need for the commission to redress the balance and be more proactive in helping to promote a wider understanding of human rights.
• However, another emerging theme was that the act had been principally seen only as a path to legal disputes: "[Local authorities] are beaten around the head quite substantially by solicitors who seek to challenge virtually every decision we make. (culture of rights!!!)
• Julia Goldsworthy MP argues: 'cant deny that the government's and Home Office's contempt for rights are habitual, and appear to be an ineradicable part of their nature that the HRA cannot restrain.'
• David Cameron was forced to speak out after the Home Secretary Theresa May warned that the legislation had become a charter for foreign criminals and terrorists.
• Human rights law is demolishing every aspect of Britain’s immigration controls
• In the last three months of 2010, 99 foreign prisoners successfully claimed that deporting them would breach their right to a family life in Britain.
• ECtHR is FLOODED with applications that it simply cannot deal with in Strasbourg
• LJ Sedley in Redmond Bate v DPP 2000: 'the act has brought about or reinforced a constitutional shift away from the conception of rights as mere residual liberties.'

1. Lord Lester & Kate Beattie: 'Human Rights and the British Constitituion; in Jowell and Oliver 'The Changing Constituiton' 2007: over 200 judgements of the ECtHR that have found breaches by the UK ranging from:

• inadequate safeguards against telephone tapping by the police
• corporal punishment in schools and by step fathers
• criminal sactions against homesexual conduct and exclusion of homosexuals from army
• restriction on prisoners rights to vote

2. Lord Bridge in R v Sec of State Home Department 1991, ex parte Brind: 'the courts will presume that Parliament intended to legislate in conformity with the Convention, not conflict with it' (when there is a contravention) however in this case in the House of Lords, the court ruled that a conflict with the convention did not constitute a ground for JR but this was pre-HRA and Brind has now been overrulled by section 6 of HRA. 

3. Lord Hoffman in R v BBC House of Lords 2003: 'the HRA gives the courts a great deal of scope to decide the limits of their own decison-making power' and the rights are very broad in nature. 

4. Lord Milett in Ghaidan v Godin-Mendoza: 'the courts widely acknowledge that parliamentary supremecy is built into the Act and remains the 'prevailing constitutional doctrine.'

5. In R v Work and Pensions Secretary 2005: it was held the government did not need to justify why it treated overseas pensioners less favourably than those in the UK. It was enough to say 'all things considered, Parliament considered the present system of payments fair allocation of the resources available'. 

- Look at exam structure for an answer about whether HRA offers appropriate protection? 

- Read Turpin and Tomkins and Barnett books for more commentary 

- Think about OWN opinion on HRA 1998