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Broadbent: Public Law Directions

Chapter 7

1. Why was the Human Rights Act 1998 passed?

It was passed for a number of reasons, but largely to incorporate the European Convention on Human Rights into English law and to enable citizens to bring matters relating to their rights under the Convention before the domestic courts.  Remember that formerly a citizen could not argue before an English court (as the Convention was not part of English law) that his rights under the Convention had been violated, but could only take a case to the European Court of Human Rights against the United Kingdom, something that required considerable resourcefulness and took a considerable amount of time.

2. How has the Human Rights Act incorporated the European Convention on Human Rights into English law?

It has done so with a view to preserving parliamentary sovereignty whilst recognising that the object of the Convention is to prevent abuses of state power. It has not given the courts a power to declare legislation to be invalid, but rather limits the power of the courts to making a declaration of incompatibility which then refers the matter to Parliament. However, the courts are given considerable latitude with regard to interpretation of legislation so as to be compatible with the Convention, so the power balance between the courts and Parliament is not as clear cut as it may appear. The concept of the state is given effect in the form of a public authority, signifying something exercising governmental power.

3. Which rights have been incorporated into English Law and in what circumstances can they be limited?

The Human Rights Act does not bring the whole of the European Convention on Human rights into English law. The term “Convention rights” which the Human Rights Act uses to signify those rights brought into English law, is explained in s.1 as the rights set out in Schedule 1 HRA, which means Arts 2–12 and 14 of the Convention, Arts 1 – 3 of the First Protocol and Arts 1–2 of the Sixth Protocol as read with Arts 16–18 of the Convention. The degree to which rights can be limited depends on the particular right in question. Some, such as Art 3 (prohibition on torture) cannot be limited, whilst many others are subject to limitations on specified grounds as long as these are effected by law and are necessary and proportionate.

4. What impact might the Human Rights Act have on public authorities and the courts?

As far as public authorities are concerned they are under a duty by virtue of s.6 to uphold the Convention rights in the way in which they act in the exercise of their powers. Failure to do so is unlawful and may expose the public authority to a claim through the courts by the victim. The courts are also under a duty by virtue of s.6 to uphold the Convention rights, which exists independently of any such duty attaching to a party before the court.  They also have duties under s.3 with regard to the interpretation of legislation so as to make it compatible with the Convention rights and in doing so, under s .2, to take account of, amongst other things, decisions of the European Court of Human rights. The courts have not been given a power to declare legislation that is not compatible invalid.  They can however make a declaration of incompatibility under s.4, the effect of which is to leave it to Parliament to deal with the matter. The enactment of the Human Rights Act has involved a change in the power relationship between the government, Parliament and the courts, though the exact nature of that change is difficult to particularise. Have a look at some cases on human rights issues and decide whether you think, as some have suggested, that we are now governed by the judges rather than by Parliament and its members.