Human Rights Act Reform

12 Key excerpts on "Human Rights Act Reform"

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  Democratic Governance

  • Mark Bevir(Author)
  • 2010(Publication Date)
  • Princeton University Press

    (Publisher)

  As we saw in the previous chapter, when New Labour came to power in 1997, it was committed to a program of constitutional reform thatconcentrated on devolution, Parliament, and electoral practices. The reforms also included alterations to the British judiciary. The main judicial reform was the incorporation of the European Convention on Human Rights (ECHR) into British law. This reform was realized through the 1998 Human Rights Act (HRA). Arguably, New Labour justified the HRA primarily in terms of effectiveness. Government spokespeople argued that the reform would create a more efficient system within which citizens could appeal to the ECHR without having to take “the long road to Strasbourg.” They also suggested that through the HRA, domestic courts would screen cases before they went to Strasbourg, thereby reducing the long and embarrassing list of cases in which European judges ruled against the British government. Government spokespeople alsoappealed at times to trust and accountability. They argued that theHRA would increase the level of trust in government by giving citizens the security of knowing that the courts would prevent the state misusing its power.

  The Human Rights Act incorporated the European Convention on Human Rights into domestic British law. The ECHR contains a set of standards and absolute rights that no member state can circumvent through its own domestic legislature. Britain readily adopted the convention’s charter back in the 1950s. Indeed, the British government of the time played a significant part in preparing and drafting the charter, perhaps not quite foreseeing the extent to which it might be used to oppose later government actions. The HRA challenges Britain’s long tradition of common law in favor of an enumeration of vague general principles. It also means that Parliament concedes to the judiciary the power of reviewing legislative acts against a formal written document. Section 3 of the Act explicitly states, “primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”

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  Public Law after the Human Rights Act

  • Tom Hickman(Author)
  • 2010(Publication Date)
  • Hart Publishing

    (Publisher)

  52

  The idea was that human rights values and human rights thinking would be integrated into the processes of public authorities and the mind-set of public officials, and that human rights would not just be audit principles against which decisions, policies and legislation have to measured, but would come to be seen as values and considerations that shaped government projects as they happened. Speaking on 9 December 1999, the Home Secretary Jack Straw stated that it would not only provide an ‘ethical bottom line’ for public authorities but would also give rise to a ‘formal shared understanding of what is fundamentally right and fundamentally wrong’.53 It is in this vein that the influential Joint Parliamentary Committee on Human Rights was established, to make reports to Parliament and scrutinise the human rights implications of Bills at Westminster. And in 2006, Parliament established the Commission for Equality and Human Rights which has statutory responsibility for promoting awareness of human rights and understanding of their importance.54

  What is the Human Rights Act?

  There continues to be debate about the ‘status’ of the Human Rights Act, in particular whether and to what degree it is a constitutional statute and whether it can properly be described as ‘a Bill of Rights’.55 The Act it is very obviously not an ordinary statute, either in form or content. Two things are immediately obvious but nonetheless worth emphasising. First, there is no point in engaging in an argument over labels. Examination of the status of the Human Rights Act is only helpful if it either illuminates or has implications for the meaning of the Act and the way it is given effect. However, if the Human Rights Act is understood as a constitutional statute, that is to say, a statute with special constitutional significance, this has implications for how it is interpreted, because its interpretation will be guided by the form of constitutionalism that it embodies. Secondly, the status of any statute is not fixed. The New Zealand Bill of Rights 1990, for instance, was ‘not greeted with any great interest or enthusiasm’ and it ‘perplexed both bench and bar’, but as its legitimacy became accepted it came to be invested with greater significance and wider application as time passed.56

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  Effective Learning and Teaching in Law

  • Roger Burridge, Karen Hinett, Abdul Paliwala, Tracey Varnava(Authors)
  • 2003(Publication Date)
  • Routledge

    (Publisher)

  6The Human Rights Act and the UK law school

  Andrew Williams

  Introduction

  If the wealth of academic and media debate is anything to go by, the introduction of the Human Rights Act 1998 (HRA) has already had a massive impact on the United Kingdom. In particular, it would seem that human rights concerns have become all pervasive in legal practice. Whether judicial reaction will encourage such a movement will always be in dispute but there can be little doubt that lawyers will become increasingly aware of human rights considerations in their work. They are already learning how to adapt to the new environment through trial (literally) and error.

  We can take it for granted that law schools will not ignore this important development. Several institutions may respond by looking to introduce HRA-related issues across the curriculum. Others will leave them for individual teachers to adapt their courses where necessary whilst ensuring that traditional subjects such as English Legal System and Constitutional Law now incorporate the HRA into their programmes. Equally, courses devoted to human rights may well deal with the Act as an important addition to the subject of ‘civil liberties’ in the United Kingdom.

  Whichever method is adopted, the problem for law schools could reflect those faced by the legal profession in general. Is the HRA to be treated as the introduction of just another strategy to be employed by lawyers in the pursuit of their clients’ interests? Or can it fulfil those aspirations attached to its introduction that envisaged a change in the whole legal culture of the United Kingdom? The very uncertainty associated with the HRA therefore has significant implications for the legal academy. The question remains whether the envisaged approaches to teaching the subject are a sufficient response.

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  Parliamentary Bills of Rights

  The Experiences of New Zealand and the United Kingdom

  • Janet L. Hiebert, James B. Kelly(Authors)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  PART II The United Kingdom’s Human Rights Act 1998 6 Political Origins of the Human Rights Act The United Kingdom’s Human Rights Act (HRA) is the product of a conscious attempt to envisage the protection of rights occurring in a less court-centred manner than is usually associated with a bill of rights, where courts are given authority to impose binding constraints on legislation. The HRA came into effect in 2000 and authorizes a domestic judicial role that significantly exceeds that which had earlier existed. Before this, judges could protect rights through their interpretation of the common law but parliament was not required to justify legislation before domestic courts in terms of its consistency with Convention rights. Although the UK ratified the European Convention of Human Rights (EHCR) in 1951, and accepted the jurisdiction of the Court of Human Rights with respect to individual complaints in 1966, 1 UK courts were unable to rely directly on Convention rights in domestic proceed- ings prior to the HRA’s enactment. 2 The HRA allows citizens to challenge legislation for violating Conven- tion rights in domestic courts while withholding a remedial power for judges to set aside inconsistent legislation. If judges deem legislation to be inconsistent with Convention rights, when possible they can rely on their interpretive powers to construe and interpret the scope or effects of legislation in a rights-compliant manner, or they can engage a new power to declare that legislation is incompatible with protected rights. However, parliament retains authority for determining the legality of legislation and can respond to a judicial declaration of incompatibility by either maintaining the legislation as is, or passing remedial measures to give effect to judicial concerns. If a court alters the scope or effects of legislation in the effort to interpret it in a rights-compliant manner, 1 D.

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  Q&A English Legal System

  • Gary Slapper, David Kelly(Authors)
  • 2014(Publication Date)
  • Taylor & Francis

    (Publisher)

  Human Rights Act (HRA) 1998 has had profound implications for the operation of the English legal system and the relationship of the judiciary to the legislature and executive. Although how it finally works out remains to be seen, it can already be seen to have had a substantial effect since its implementation in October 2000.

  Checklist

  You should be familiar with the following areas:

    What is actually meant by the term ‘the rule of law’?

    Does everyone agree as to the meaning?

    To what extent has the meaning changed over time?

    Is there an identifiable core meaning to ‘the rule of law’?

    Is law an end in itself, or simply a means to an end?

    What does the

  HRA 1998

  provide?

    What are the implications of the HRA 1998 ?

  QUESTION 1

  Section 1

  of the

  Constitutional Reform Act 2005

  specifically provides that it ‘does not adversely affect the existing constitutional principle of the rule of law …’.

  Explain what is meant by the ‘rule of law’ and its relevance in contemporary society.

  How to Read this Question

  The first thing to notice is that although this question refers to the

  Constitutional Reform Act 2005

  , it is not about that particular piece of legislation and can, and indeed should, be answered with no reference to it whatsoever.

  It is commonplace for examiners to use quotations or other references to hang questions on and that is exactly what has been done here. The question is about the concept of the rule of law and that is what should be addressed in the answer.

  How to Answer this Question

  This question asks for a general consideration of the rule of law and, importantly, questions its relevance in contemporary times. Candidates must know what is understood by the concept and must offer an opinion as to its continued relevance; but they must be careful to substantiate any opinion and not resort to mere assertion and amorphous waffle. One way (and it is only one of many ways) to answer this question is as follows:

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  Parliaments and Human Rights

  Redressing the Democratic Deficit

  • Murray Hunt, Hayley J Hooper, Paul Yowell, Murray Hunt, Hayley J Hooper, Paul Yowell, Murray Hunt, Hayley Hooper, Paul Yowell(Authors)
  • 2015(Publication Date)
  • Hart Publishing

    (Publisher)

  Part II

  Legislative Human Rights Review in the UK Parliament

  Passage contains an image

  5

  Democracy, Law, and Human Rights: Politics as Challenge and Opportunity

  DAVID FELDMAN *

  IN ONE WAY, this can be seen as the age of human rights. These international standards have strongly influenced the drafting of constitutional and statutory provisions in many countries. Examples include the Canadian Charter of Fundamental Rights, which became part of the Constitution in 1982, the New Zealand Bill of Rights Act 1990 and numerous constitutions in transitional states such as South Africa in 1993 and 1996, Bosnia and Herzegovina in 1995, and more recently still Afghanistan and Iraq. Other well-established parliamentary democracies are now following the lead, with the UK’s Human Rights Act 1998, the Australian Capital Territory’s Human Rights Act 2004, and Victoria’s Charter of Human Rights and Responsibilities Act 2006.1

  Yet from another perspective human rights are fragile growths in modern political systems. In the UK, which enacted a Human Rights Act in 1998, the government and opposition currently profess to see human rights as threats to democratic politics and constraints on their ability to advance the public interest through policies and legislation, especially in relation to combating terrorism and crime, and controlling immigration. The Act made a number of the rights which bind the UK in international law under the European Convention on Human Rights (ECHR) part of municipal law in the UK. It does not allow courts to strike down legislation, but there is an obligation to read and give effect to legislation so far as possible in a manner compatible with Convention rights. When not protected by primary legislation, action by public authorities is unlawful to the extent of any incompatibility with a Convention right.

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  Law's Future(s)

  • David Hayton(Author)
  • 2000(Publication Date)
  • Hart Publishing

    (Publisher)

  But one critical task which the Human Rights Act will perhaps set constitutional lawyers, more pressingly than they are used to, is to crystallise the scope of their subject. In a sense, therefore, there is a critical ten-sion in our title, which raises the two questions on which we focus in this chap-ter. First, what is it to be a constitutional lawyer in the opening decades of the new century? And secondly, where in the legal system will the Human Rights 54 Conor Gearty and Adam Tomkins Act bite hardest, if it is not to be in the arena of constitutional law? It is to the first of these questions that we now turn. The Future of Constitutional Law Surveying the most recent catalogues of the United Kingdom's major publish-ers of law books, one would have thought that constitutional law somehow no longer existed as a field of academic research, but had been replaced by a sub-ject called constitutional reform. 1 No-one would deny that the Labour Government elected in 1997 has indeed embarked on an ambitious pro-gramme of legislative reforms, some of which will have a profound impact on the future of constitutional governance in the United Kingdom. The combined effect of devolution, reform of the House of Lords, freedom of information, and incorporation of (most of) the European Convention on Human Rights 1950 will be significant and long term. A State of Constant Flux However, while all this is true, a sense of perspective is called for. The consti-tution is not being re-written. It is not even being written. It will remain uncodified and customary. Power will continue to flow down from the Crown, as neither the personal powers of the monarch, nor the executive prerogative powers of her ministers feature as items for modernization on the Government's constitutional reform agenda (subject, of course to any possible intrusion of the Human Rights Act in this area).

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  Beginning Human Rights Law

  • Howard Davis(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  Other criticisms go to the idea that the Act gives judges too much power at the expense of Parliament. This is answered by pointing out that, if this is the case, it derives from the wish of Parliament to limit its own powers in this way. On the other hand there are criticisms that the Act does not give judges enough power (because they cannot invalidate legislation) or that judges do not use the powers they have to the full extent allowed under the Act. Some such critics (Ewing and Than, below) point to how little judges have felt able to do, even with the Act, to protect those subject to serious restraint, such as under control orders. Others (Lord Judge, below), less critical, want to encourage UK judges to stand by their careful considerations of what human rights law requires and not automatically change them in later cases, just because the Strasbourg court has come to a different conclusion.

  What is likely is that, within the next few years, there will be significant changes both at Strasbourg and domestically concerning the manner and form (and perhaps the substance) of human rights protection in the United Kingdom.

  SUMMARY

  The HRA enables individuals to pursue their rights under the ECHR in the courts of the UK. The Act gives courts considerable freedom over the way they interpret statutes, but they must not use these powers to ‘legislate’, only to interpret. Public authorities and other organisations exercising public functions must not violate peoples’ Convention rights. The other state institutions, ministers and Parliament, also have duties under the HRA.

  ISSUES TO THINK ABOUT FURTHER

  Conservative party policy (in 2010) was to repeal the HRA and replace it with a ‘British Bill of Rights’. To that end a Commission on a Bill of Rights was established. It has produced a report discussing options on what this Bill of Rights would look like and how it might be different from the HRA. The report, ‘The Choice Before Us’ is worth thinking about. The Commission’s website is www.justice.gov.uk/about/cbr .

  FURTHER READING

  • Lester, Pannick and Herberg, Human Rights Law and Practice , 2009, London: Butterworths (carried on Lexis®Library), Chapter 2 .This is a full and comprehensive discussion of the Act.

  • Joint Committee on Human Rights: www.parliament.uk/jchr

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  Democracy and the Human Rights Act

  Republican Analysis of Citizen Power

  • Dennis Dixon(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  In constitutional review, as in all subjects that come as questions for adjudication before the courts, not every claim for political consideration has a claim for legal consideration; even less are such claims equal. That is the nature of law.

  Taking these limitations into account, a reconciliation argument would be as follows: the Human Rights Act may stimulate the ordinary political, democratic process, and, even though it cannot help all who are aggrieved, it represents an improvement to that process. The counter-argument would be that findings of incompatibility under the Human Rights Act (whatever the theory) are determinative, and thus the Act replaces the admittedly rough and ready link between public opinion and legislation found in the classic British Constitution. The difference is whether constitutional review supplements or supplants the ‘come-at-ability’ of legislative decisions by way of Parliament.

  For the reconciliation argument to work, and for the elegant balance to be a real balance and not just a manoeuvre to preserve the façade of Parliamentary Sovereignty, the Human Rights Act must not give a de facto remedy in terms of law change, but instead provide a route by which the concerns of at least some of the unpopular are brought into the ordinary political process. The ‘elegant balance’ hypothesis depends on participation via the Human Rights Act not being ‘effective’ in that its results must not guarantee legislative change. The Act should operate as a way into participation in the ordinary political process, without rendering that process any less ‘individualised, unconditioned and efficacious’. The political process by way of Acts of Parliament outranks constitutional review under the Human Rights Act, and the electorate, should they engage themselves on an issue, outrank the politicians who from time to time make up Parliament.

  As we saw in Chapter 2

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  Human Rights Brought Home

  Socio-Legal Perspectives of Human Rights in the National Context

  • Simon Halliday, Patrick Schmidt, Simon Halliday, Patrick Schmidt(Authors)
  • 2004(Publication Date)
  • Hart Publishing

    (Publisher)

  2 See, eg HWR Wade, ‘Human rights and the judiciary’ (1998) 520 European Human Rights Law Review 532, describing the Human Rights Act as ‘ … a quantum leap into a new culture of fundamental rights and freedoms.’ for national difference. 3 In addition, the Home Office’s White Paper, Rights Brought Home: The Human Rights Act , itself adopted a line which is prag-matic and expressly respectful of English constitutional traditions such as sovereignty. 4 The English judiciary have also been said to be conservative-minded when it comes to major legal innovation, such as the development of rights to privacy or against discrimination. 5 Moreover, the higher courts had already encountered the European Convention which was being increasingly cited as persuasive 6 and so were not encountering an entirely unknown influence. Even the executive in Whitehall did not exactly face a revolution, for it had long worked with the Convention and had already engaged in ‘Strasbourg proofing’, 7 as a consequence of which it did not expect many challenges to succeed or many major legal reforms to be undertaken to ensure compatibility. Despite all these restraints, the courts, like the legal profession more gen-erally, tended to expect a significant level of interest and challenges based on the Act. Indeed, in the minds of some, it was feared that ‘ … the lawyers [will] … dominate all the debates.’ 8 While this viewpoint now seems to have been exaggerated, even the Lord Chancellor, Lord Irvine, asserted in December 1997 9 : This Bill will therefore create a more explicitly moral approach to decisions and decision making; will promote both a culture where positive rights and 112 Raine and Walker 3 See Handyside v UK , App no 5493/72, Ser A vol 24, (1976) 1 EHRR 737 and see also Müller v Switzerland , App no 10737/84, Ser A vol 133, (1991) 13 EHRR 212; Scherer v Switzerland , App no 17116/90, Ser A vol 287 (1994).

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  The New Ministry of Justice

  An Introduction

  • Gibson, Bryan(Authors)
  • 2008(Publication Date)
  • Waterside Press

    (Publisher)

  The HRA was a commitment of that Government, which took up office in 1997, in its election manifesto. The development was later announced in a Green Paper, Bringing Rights Home . The then Lord Chancellor, Derry Irvine being at the forefront of these events. Much was made of the merits of at last signing up to the full rigour of the ECHR (see further below). 11 Since that time, the scope for self ‐ determination by the UK (or by the same token other member countries of the European Union who have signed up to the ECHR) is to an extent proscribed by the ECHR. Discussion of whether there should be a UK written constitution (above) thus inevitably also raises questions as to whether that constitution would replace, incorporate or stand alongside the 1998 Act. 12 Human rights as a constitutional responsibility It is perhaps hardly surprising then that the MOJ categorises human rights as one of several areas that fall within its ‘constitutional’ responsibilities – although it appears to do so without giving human rights any special kind of priority. 13 Neither, e.g. are human rights included within the more basic of the key aims noted at the MOJ web ‐ site and reproduced in Chapter 1 (any more than protecting the Judiciary is). In retrospect, the Act that New Labour was initially so keen to promote from 1997 onwards came at times to be regarded by that Government and sections of the media as an impediment or obstacle. Its reputation undoubtedly suffered thereby, especially when a suspect or offender appeared to gain in some way from ECHR protection but a victim of crime appeared to have been less well ‐ served.

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  Delivering Rights

  How the Human Rights Act is Working and for Whom

  • Jeffrey Jowell, Jonathan Cooper, Jeffrey Jowell, Jonathan Cooper(Authors)
  • 2003(Publication Date)
  • Hart Publishing

    (Publisher)

  Remedies Under the Human Rights Act: A Community Law Perspective P. M. Roth QC* INTRODUCTION Like the Contracting States to the European Convention on Human Rights (“ECHR”), the Member States of the European Union are bound, at an international level, to give effect to a body of superior legal norms in their domestic legal order. The Human Rights Act 1998 (“HRA”) is designed to bring a full, and many would say belated, implementation of the ECHR norms into the legal regimes of the United Kingdom. In the consideration of remedies under the Human Rights Act 1998, there are several reasons why examination of the position under the European Community (“EC”) legal order is relevant and appropriate. First, the principles of the ECHR have long been applicable through EC law. Although there was no reference to human rights in the EC Treaties until the Maastricht amendment of the Treaty on European Union, 1 in the 1970s the Court of Justice (“ECJ”) enunciated as a gen-eral principle of Community law the protection of fundamental rights as recognised in the constitutional traditions of the Member States and in international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories. 2 The ECHR is clearly recognised as having special significance in that regard and the ECJ in its judgments has referred to specific provisions of the ECHR 3 and to decisions of the European Court of Human Rights. 4 In * Monckton Chambers, Visiting Professor, King’s College, London. 1 See now Art 6(2) [ ex F(2)] of the Treaty on European Union. 2 See Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125; Case 4/73 Nold [1974] ECR 491. For a general statement of the principle, see Case C–260/89 ERT [1991] ECR I–2925, para 41. 3 For the first occasion, see Case 44/79 Hauer [1979] ECR 3727. 4 For the first occasion, see Cases C–74 and 129/95 X [1996] ECR I–6609.

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