Chapter 4 HRA Question 1 To what extent did English law recognize human rights and civil liberties before the passing of the Human Rights Act 1998? Why was this traditional method regarded as unsatisfactory and how did the 1998 Act address any deficiencies of the traditional system? This question asks you to consider the manner in which human rights and civil liberties were recognized and protected before the Human Rights Act, and whether this system was satisfactory. It then asks you to consider how the 1998 Act made good any deficiencies of that system. It is a popular myth that there existed no human rights and civil liberties law before the passing of the Human Rights Act and that all violations had to be taken before the European Court and Commission of Human Rights. In fact before the 1998 Act there existed a relatively sophisticated and effective system of rights protection through both statute and judicial protection much of which has survived the Act. This question asks you to consider the various ways in which rights and liberties were upheld in the pre-act era but, equally importantly, it asks you to identify the shortcomings of a system that had no charter of rights and no special or entrenched human rights law. In order to assess the efficacy of the traditional system you will need to consider the cases brought before the European Convention machinery against the United Kingdom as well as the general calls for reform before the passing of the 1998 Act. This should highlight the deficiencies of the old system, including the gaps filled by the 1998 Act itself. The answer should include: The position of residual civil liberties under the traditional common law method; the advantage and efficacy of that method; the drawbacks of that system; The United Kingdom s record before the European Court of Human Rights vis-à-vis such deficiencies
Question 2 By the use of case law, critically assess the extent to which the domestic courts have used the Human Rights Act 1998 to enhance the protection of human rights in domestic law This question calls for an examination of the post-human Rights Act case law in order to assess the effectiveness of the Act in providing effective redress for infringements of human rights. As the question asks you to assess the extent to which human rights protection has been enhanced, you will need to have some knowledge of the traditional common law system of rights protection. Further, as the question asks for a critical assessment, you should not simply explain the post-act cases, but should consider whether the courts have made full use of the Act and their new powers, indicating where they have, and where they have failed to do so. Note the question does not call for a criticism of the Act itself and any criticisms must be of the manner in which the courts have used the powers bestowed on them by the Act. The student should begin by giving a general account of the main aims and provisions of the Act in particular that the Act is to give effect to the rights and principles in the European Convention and its case law and to give individuals human rights rather than residual civil liberties and an explanation of the increased powers of the courts in this respect. At this point a brief explanation of the deficiencies of the traditional system can be offered. The answer can then examine specific issues such as the individual s right to bring actions against public authorities, the courts power to employ concepts of necessity and proportionality and their power to use Convention case law, their increased powers of interpretation, the power to issue declarations of incompatibility, the award of just satisfaction, the restrictive approach to retrospective effect of the Act, and the potential horizontal effect of the Act. Each of these headings can be illustrated by reference to case law, which should be examined in a critical way to assess whether the courts are truly enhancing the protection of human rights in the post-act era. The student can then move on to a conclusion as to whether, and to what extent, the courts have used their powers in a manner that has effectively enhanced the protection of human rights in domestic law. This conclusion can also consider whether previous disadvantages and deficiencies of the traditional system have been addressed and rectified. The answer should include: a general overview of the basic aims and provisions of the Human Rights Act 1998 and consideration of the court s new powers under the Act; an explanation of how European Convention principles have been given effect in domestic law and examination of relevant case law to see how the domestic courts have applied Convention principles and case law; a critical analysis of whether the
courts have fully utilized their powers under the Act; and an analysis of the extent to which domestic human rights protection has been enhanced by the Act
Question 3 Why was the Human Rights Act 1998 passed and why has it caused so much controversy? The question requires you to consider the passing of the Act and the legal and constitutional dilemmas and controversies caused by its passing and operation. Your answer should include the following observations. The Act was passed to give further effect to the rights contained in the Convention, above. This means that individuals can plead such rights in domestic legal proceedings and rely on the principles and case law of the Convention and the European Court when trying to vindicate their rights. Although this will enhance individual rights in domestic law, the primary purpose was to ensure that domestic law, and court decisions, became consistent with Convention law, thus reducing the chance that individuals would take their case to the Strasbourg Court and highlight any deficiencies of our system. This had occurred in many cases involving matters such as prisoners rights, freedom of expression and individual privacy. This involved bestowing new powers on our domestic courts to interpret and apply domestic law compatibly with Convention law. For example the courts could use the European doctrine of proportionality to ensure that the law and administrative decisions struck an appropriate balance between human rights and other rights and interests. This is controversial in the sense that the courts may be accused of involving themselves in policy and the merits of the law, thus breaching their traditional constitutional role of declaring the law and showing respect to the wishes of democratically elected Parliament and politically accountable public bodies. Equally, the courts may now declare legislation incompatible with Convention rights. Although this does not strike down clear Parliamentary law, it can be argued that this power, together with their new interpretation powers, unreasonably challenges parliamentary sovereignty. Decisions on matters such as detention without trial and the legality of criminal proceedings have highlighted these controversies. In addition, following the coming into force of the Act the courts have developed the law of privacy, which, it is argued, unreasonably affects freedom of the press and the public right to know.
Question 4 Why does the present government feel that the European Court has become too powerful and that it, and the Human Rights Act, is in need of reform? This question asks you to comment on the recent proposals for reform of the ECHR and the HRA. It should include the following points. The main controversy stems from the government s belief that the Court is prepared to interfere too readily with domestic application of Convention rights, including, on occasions, disagreeing with the domestic courts interpretation and application of those rights. For example, the government is angry that the European Court has overruled the domestic courts on questions such as prisoner voting and the admissibility of torture evidence abroad. It is believed that in those cases the European Court should respect the decisions of the domestic courts on the application of human rights principles to domestic law, particularly as the domestic courts have applied Convention principles in the first place. More generally the government feels that the Court has become a powerful and supreme appeal court, which was not the intention of the drafters of the Convention, who would have assumed that the Court would only rule on a limited number of serious human rights violations. This it tied in with the doctrine of the margin of appreciation where the European Court should give to the domestic authorities an element of discretion when deciding whether domestic laws and their application are consistent with Convention rights. As the Human Rights Act allows our courts to use Convention principles and case law, there is also concern that the domestic courts are now paying too much attention to European principles, rather than applying clear and specific domestic law in line with more acceptable judicial boundaries that will pay respect to Parliament, accountable government and the right of victims of crime.
Question 5 What plans are there for reform of both the European Convention and Court, and the Human Rights Act 1998? The question asks you to consider the possible reforms to the HRA and the European Convention and Court. It should consider the following points. The recent Brighton Declaration advocated that the Court s case law be managed more effectively so that it does not deal with cases that have already been determined by the domestic courts and that the Court recognises that it and Convention is subsidiary to domestic law. These views, shared by a number of member states, would see the reduction of the European Court s case load and powers, leaving domestic law and the domestic courts to achieve the necessary balance between human rights and other public and private interests. In addition, the last two governments have called for the repeal or amendment of the Human Rights Act and its replacement by a British Bill of Rights. These proposals exist side by side with calls for reform of the Court, above, although they also advocated the restatement of rights which would uphold British values of justice and freedom. In addition both governments were concerned that human rights should carry with them responsibilities, suggesting that certain rights should be surrendered when the individual has not acted in an appropriate way. Committees and Commissions set up to look into the establishment of a Bill of Rights have warned government that such proposals would not satisfy international law or its obligations under the Convention. However they have advocated the introduction of additional rights other than the existing minimum Convention rights; and the most recent Commission have accepted that a Bill of Rights is desirable at least in principle if it could enshrine domestic principles of justice and liberty to add to the existing regime.