Podcast: the Fair
In terms of enhanced human rights protection, are there arguments in favour of introducing a tailor-made Bill of Rights for the UK, as opposed to relying on the Human Rights Act 1998?
Podcast: the Fair
This essay will consider various arguments in favour of introducing a Bill of Rights unique to the UK and compare the HRA with a Bill of Rights. (1) A basic introduction that sets out the question but lacks detail.
The rights contained in the ECHR are fairly weak – containing long lists of exceptions to most of the primary rights (2) An introduction setting out the structure of the essay would aid in demonstrating that the student understands the question. . These exceptions suggest a strong respect for the institutions of the State. These exceptions have at times received a broad interpretation in the ECtHR and such interpretations are having a strong influence on domestic courts, as they apply the rights directly in the domestic arena under the HRA. For example, Art 10, which protects freedom of expression, contains an exception in respect of the protection of morals (Handyside(1976)). (3) While this authority is relevant, the student could have gone into further detail, as this is provided for by the question. In other areas, there has been an equal willingness to allow the exceptions a wide scope in curtailing the primary rights.
However, these were all instances in which the doctrine of the ‘margin of appreciation’ had an influence on the decision in question. In other words, the view was taken that in certain particularly sensitive areas, such as the protection of morals or of national security, the domestic authorities had to be allowed a certain discretion in determining what was called for. In less sensitive areas, the ECtHR has been bolder. In the Sunday Times case (1979), it was determined that the exception to Art 10, allowing restraint of freedom of speech in order to protect the authority of the judiciary, was inapplicable in an instance where the litigation in question that could have been affected was dormant.
Therefore, it all depends on whether the UK judges give (4) Students should avoid vague phrases like this. full weight to the express exceptions under Arts 8–11 of the Convention (e.g. Interbrew SA v Financial Times Ltd (2002)), where the Court of Appeal found that on the facts of the case no protection for a media source need be given. In R(on the application of Gillan) v Commissioner of Metropolitan Police (2006), the House of Lords found that, assuming that Arts 8 and 10 were applicable, the exceptions under them were satisfied, without engaging in any proportionality analysis.
Apart from the express exceptions to Arts 8–11, there are also general restrictions to the operation of the rights. All of the Articles except Arts 3, 4(1), 6(2) and 7 are subject to certain restrictions, either because certain limitations are inherent in the formulation of the right itself, or because it is expressly stated that certain cases are not covered by the right in question. Even the right to life under Art 2 is far from absolute: ‘unintentional’ deprivations of life are not covered, and the use of necessary force is justified even where it results in death. Derogations from certain rights are also possible under Art 15. Sometimes domestic courts have succeeded in finding exceptions even to rights that appear to be largely unqualified, such as Art 6(1): this was evident in Brown v Stott (2001). (5) Good use of relevant authority.
However, the judges do have an important function under the HRA in interpreting the rights. (6) Further detail required here; also the point is quite vague. This is in contrast to the previous position, in which the judges in some instances merely applied the statute in question (e.g. the Rent Act 1977 in Ghaidan v Mendoza (2004)), since Art 14 prohibits discrimination on any ground, without the restrictions in the UK’s current antidiscrimination scheme (for example, discrimination on grounds of sexual orientation could occur until recently in the contexts of goods and services, and housing, without giving rise to a cause of action). A wide range of Strasbourg case law exists on discrimination and this has extended discrimination in the UK. (7) While minor, this type of error can hold back an otherwise sound essay – it is good practice to check through an essay to eliminate errors like this.
A tailor-made Bill of Rights could, however, have contained a more extensive list of rights, including social and economic rights. In particular, it could have included a free-standing antidiscrimination guarantee. Art 14 of the ECHR prohibits discrimination on ‘any ground such as sex, race, colour, language, religion’, but only in relation to any other Convention right or freedom. It has been determined in a string of Strasbourg cases since X v Federal Republic of Germany (1970) that Art 14 has no separate existence, but that, nevertheless, a measure that is, in itself, in conformity with the requirement of the Convention right governing its field of law may, however, infringe that Article when it is read in conjunction with Art 14, for the reason that it is discriminatory in nature. In Abdulaziz, Cabales and Balkandali v UK (1985), it was held that although the application of Art 14 does not presuppose a breach of the substantive provisions of the Convention and is, therefore, to that extent, autonomous, it cannot be applied unless the facts in question fall within the ambit of one or more of the rights and freedoms. (8) Sound analysis.
The HRA itself has limitations in terms of enhanced human rights protection. The choice of the HRA as the enforcement mechanism for the ECHR means that the Convention is received into domestic law, but not entrenched on the US model; thus, it could be removed by repeal of the HRA. Also the judiciary cannot strike down incompatible legislation (i.e. there is no entrenchment). This means that Parliament can deliberately legislate in breach of the Convention (s 19), and the incompatible legislation will be effective. It also means that if prior or subsequent legislation is found to breach the Convention in the courts and cannot be rescued from doing so by a creative interpretation under s 3, it must simply be applied (see H v Mental Health Tribunal, North and East London Region and Anor (2001). (9) In a broad essay on the powers of the HRA in terms of rights protection, the examiner would expect to see some reference to s 4. In this case, the judiciary is powerless.
The use of ss 3 and 6 HRA as the means of affording the Convention further effect in domestic law means that rights protection under the HRA is limited. If no statute is applicable in a particular instance, and the rights-infringing body does not have a ‘public function’ under s 6, a citizen cannot obtain legal protection for his or her Convention right, unless there is an existing common law cause of action that can be utilised (Campbell (2004)).
In conclusion, the ECHR was never intended to be used as a domestic Bill of Rights. Incorporation of the Convention was chosen instead as a quick fix solution, which leaves numerous gaps in rights-protection, although it does provide some protection of domestic Bills of Rights in other countries, such as the USA. (10) A basic conclusion that loses some of the nuance and analysis present in the text, but essentially addresses the question.