Clements: Q&A Public Law. Chapter 7: The Human Rights Act 1998

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1 Chapter 7: The Human Rights Act 1998 Chapter 1: The response to terrorism has been at a considerable cost to traditional liberties formally protected by the common law, the ECHR and the Human Rights Act (Bradley and Ewing, Constitutional and Administrative Law, p. 600) Discuss. This is a discussion question on human rights, which draws attention to a recently controversial area. When threatened with problems like terrorism, most governments consider it necessary to alter the normal legal rules on how suspected criminals are treated. This can bring the courts into conflict with the government or Executive. Judges may not agree with the legal changes and may feel that they unnecessarily threaten human rights or the liberties of the individual. There has been a lot of legislation on terrorism. In a relatively short essay for an examination, it would be difficult to cover it all. You should not just repeat information but should try to criticise and analyse. It would pay to be selective and just to look at the legislation that you consider most significant. Back this up with the most important cases. For example, you might cover the following areas. Terrorism is defined in section of the Terrorism Act The Act has been much amended since that date and the definition of terrorism has been criticised as being too wide. The right to life is protected under Article 2 of the European Convention on Human Rights. The shooting of terrorists was not justified in McGann, Farrell and Savage v UK (1995) 21 EHRR 97. Torture and inhuman treatment is outlawed by Article. Both the European Court of Human Rights, in Ireland v UK (1978) 2 EHRR 25 and the House of Lords in A v Home Secretary (No 2) [2006] 2 AC 221, have agreed that suspicion of terrorism does not justify torturing a suspect. Nor is permissible to deport a suspected terrorist to a country where they might face torture: Chahal v UK (1997) 23 EHRR 413.

2 Detention without trial, for suspected terrorists, is only permissible for a short time and has to be judicially authorised: Brogan v UK (1998) 11 EHRR 117. Control orders are also a breach of the right to liberty under Article 5: A v Home Secretary (No 1) [2005] 2 AC 68. Even in a situation of terrorist threat, arrest and search is only permitted if there is reasonable suspicion: Gillan v UK (2010) 50 EHRR 45. Access to a solicitor can be delayed but not denied under Article 6. Lastly parts of the European Convention on Human Rights can be suspended under Article 15 if there is a public emergency threatening the life of a nation, but the courts will decide whether the suspension, and the actions taken under it, are justified: A v Home Secretary (No 1) [2005] 2 AC 68 and Ireland v UK (1978) 2 EHRR 25.

3 Chapter 2: What effect has the European Convention of Human Rights had upon the protection of civil liberties in English law? Discuss. The Human Rights Act was enacted in 1998, coming into force in It allowed the rights protected by the European Convention on Human Rights to be more easily enforced in UK courts. This country already had a long established tradition of civil liberties. The United Kingdom had been a party to the Convention since its beginning, in 1951, and the judgments of the European Court of Human Rights had already had a considerable effect upon English law. Not only had legislation been required, but the courts had adapted the common law to reflect the Convention. The Human Rights Act 1998 just make this process easier. The problem with writing an essay like this is that there are so many possible examples, so you need to be selective. It is not possible to include everything. I have chosen examples that interest me, but you could choose examples from the course that you have studied. Corporal punishment in schools has been abolished. Because of rulings by the European Court of Human Rights: Tyrer v United Kingdom (1978) 2 EHHR 1 and Campbell and Cosans v United Kingdom (1982) 4 EHRR 293 Discrimination against homosexuals has been eliminated, prompted by rulings from the European Court of Human Rights such as Dudgeon v United Kingdom (1981) 4 EHRR 149 and Lustig-Prean and Becket v United Kingdom (2000) 29 EHRR 548. The UK was forced to accept the rights of transsexuals after the successful case of Goodwin v UK (2002) 35 EHRR 18 and the law was changed in the Gender Recognition Act Interference with communications by the police and security services is now regulated by statute because of ECHR cases, enforcing Article 8, such as Malone v UK (1984) 7 EHRR 14, Khan v United Kingdom (2001) 31 EHRR Release from prison is now decided by the courts rather than politicians. This used to be a problem for prisoners serving life sentences. R v Home Secretary ex parte

4 Venables and Thompson [1998] AC 407 was a famous case involving child murderers an dthe same approach was extended to adult life prisoners in R (Anderson) v Home Secretary [2002] 4 All ER Coroners investigate causes of death. The adequacy of this system has been improved as the courts have taken into account human rights considerations. R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 applied in the UK. More controversially this also applied to deaths outside the Uk, such as in Iraq: R (Al Skeini) v Secretary of State for Defence [2006] HRLR 7. The rights of asylum seekers are better protected following case such as Chahal v UK (1997) 23 EHRR 413.

5 Chapter 3: The government are alarmed by the activities of the Grey Party. A leading government minister has been assassinated and bombs have been exploded in various government offices. The Grey Party has not claimed responsibility for these acts, but the government blames them. Parliament enacts a Suppression of Terrorism Act which makes the Grey Party an illegal organisation; members of it subject to arrest and detention; possession of Grey Party literature a criminal offence and allows the police to intercept the communications of suspected members. The police intercept Joanna's telephone calls, because they suspect that she is a leading member of the Grey Party. Her house is searched and Grey Party literature is found. She is detained without trial and interrogated by intelligence officers. Joanna is deprived of sleep, fed a restricted diet and not allowed to sit down while being questioned. Joanna is not allowed any letters in or out and she is not permitted to contact her family, friends or lawyer. Advise Joanna upon whether her human rights have been infringed. It is unlikely that so much would happen to one unfortunate person, but the idea of this question is to acquaint you with the different Convention rights and the case law that determines what those rights actually mean. Restrictions upon a political party would be a breach of Article 11 the right to freedom of association, unless the government had proof that the Grey Party actually was a terrorist organisation and a threat to national security: Brannigan and Mc Bride v UK (1994) 17 EHRR 539. Telephone tapping is strictly controlled under Article 8. There would have to be justification for it and there would have to be judicial authorisation: Malone v UK (1984) 7 EHRR 14 and Halford v UK (1989) 24 EHRR 523. Search of her house and seizure of her property would be similarly controlled under the same Article: Chappell v UK (1990) 12 EHRR 1. Detention without trial is clearly unacceptable, unless it is for a short period and subject to judicial authorisation: Brogan v UK (1988) 11 EHRR 117.

6 Joanna seems to have been subjected to inhuman and degrading treatment or punishment, during her detention, which is not acceptable under Article 3: Ireland v UK (1978) 2 EHRR 25 and Soering v UK (1989) 11 EHRR 439. Even prisoners legally sentenced and detained are allowed to contact the outside world and their lawyers, so Joanna should certainly be allowed to do so: Golder v UK (1975) 1 EHRR 524 and Silver v UK (1981) 3 EHRR 35. There is no evidence in our problem that the UK has used Article 15 to suspend parts of the ECHR because of the violent situation, but even if they had, it would still not be permissible to treat Joanna in this way: Ireland v UK (1978) 2 EHRR 25.