The Human Rights Act 1998

The Human Rights Act 1998, or HRA, was passed to incorporate ECHR into UK law as part of government’s commitment to protecting human rights.  ECHR is now a legal obligation.

     HRA removed residual rights in favour of positive rights: stronger rights that require a good reason for removal, good justification from the state.

·         Article 2: Limited Right. The Right to Life. ‘Everyone has the right to live’

·         Article 3: Absolute Right. Prohibition of cruel and inhuman treatment.  Torture is unlawful and the UK must not involve itself with torture.

·         Article 8: Qualified Right. Right to Privacy and Family Life.

·         Claim in the National Courts: S.7 of HRA allows a person to take a Human Rights case  to a national court.

·         Statement of Compatibility: S.19 of HRA states all legislation should be passed with a statement showing it is compatible with human rights.

·         Declaration of Incompatibility: S.4 allows judges to state a law is incompatible with human rights and send it back to Parliament.  This complies Parliamentary Sovereignty.

·         Fast Track Procedure: S.10 allows for a fast track procedure through Parliament to change incompatible legislation.

·         Statutory Interpretation: S.3 allows judges to interpret law as far as possible in line with the ECHR.

R v A: Cross examination of **** victim.  Lord Steyn said judges should use S.3 as far as possible,. ‘it will sometimes be necessary to adopt an interpretation which linguistically may appear strained’.  S.4 should be a last resort.  Steyn also recommends a new approach to statutory interpretation, ‘read in’ words, ‘read out’ words; add or remove words.  In the **** victim case, Steyn rewrote a subsection of the offending legislation. 

   Issue: Conflict with Parliamentary Sovereignty.

RE W and B: If the part of the law that illegally removes human rights is fundamental then the judge cannot alter it.  It should be sent to Parliament under S.4.

Anderson: Role of Secretary of State in approving the release of mandatory life sentences was decided as incompatible with Art. 6.  Problem: Secretary of State’s role was a fundamental feature of the offending legislation.  S.3 could not be used.

Ghaidan v Godin-Mendoza: Leading case on S.3, and contains current approach.Lord Nicholls made points:

1.      If the words in an act illegally remove a person’s human rights than they can be changed using S.3.

2.      Changes can be made by restricting meaning of a word to 1 definition or by using wider definitions.  But, judges aren’t allowed to do more and add words to the section like a legislator.

3.      Judges aren’t allowed to change fundamental parts of the law e.g. bits that have been deliberately included by Parliament.  If it’s fundamental, S.4 should be used.

·         S.6 HRA: A person can sue a public authority that illegally removes their human rights.

Public Authority= a court, tribunal and ‘any person certain of whose functions are functions of a public nature’.

This applies to the standard public authority: organisations funded by the tax payer and run by the government.

Also the Functional Public Authority: An organisation that does both private and public work.  Courts struggle with the definition. Poplar Housing and Regeneration Community Association v Donoghue: Courts decided that the organisation was a public authority by its proximity of relationship with the state.

YL v Birmingham City Council: Care home housed tenants paid for by tax payer, but set out to make a profit, so the courts ruled it was a private organisation.  This precedent allows for more organisations to avoid being sued.

Private Bodies CANNOT be sued.  Unless: Implied Horizontal Direct Effect is used.

 This is where a case is taken to court with British law, and then human rights are claimed in trial.  The courts cannot dismiss the human rights claims, as they CAN be sued under S.6

Douglas and Jones v Hello! Ltd case taken to court on a breach of confidence claim, then Art 8 was asserted in court.

S.2 requires that UK courts should ‘take into account’ precedents of the court of Human rights, or ECtHR.  ECtHR precedents are strongly persuasive, not binding.

Ullah: if ECtHR precedent is clear, and there is no domestic precedent, then ECtHR precedent should be followed.

Leeds City Council v Price: ECtHR shouldn’t be followed where there is a conflicting UK precedent, unless the UK precedent is in breach of ECHR.

·         UK: Human Rights more effectively protected in UK

·         S.19: Human Rights taken into consideration when passing a bill

·         S.7: Human Rights cases are heard in UK courts

·         S.3: Judges interpret law in line with ECHR

·         S.4: ECHR-incompatible laws changed in Parliament

·         S.6: State are held to account for human rights breaches

·         Implied Horizontal Direct Effect: Private bodies also held to account.