Podcast: the Good
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 Good
The HRA gave the European Convention on Human Rights and Fundamental Freedoms further effect in UK law using the mechanism of an ordinary Act of Parliament. It has not sought to entrench its own provisions or the Convention, nor has it introduced any new rights other than from those of the Convention. The possibility of introducing a tailor-made Bill of Rights was considered but rejected. Apart from the cumbersome nature of the process of deciding on the rights to be protected, a Bill of Rights might have taken too much account of the interests of the government in power at the time when it was passed. But although producing a tailor-made Bill of Rights would certainly have been difficult, it can be argued that the UK should nevertheless have attempted it, rather than incorporating the ready-made Convention, which is arguably defective in content. This essay will consider various arguments in favour of introducing a Bill of Rights unique to the UK. It will go on to consider the possibility of entrenchment, which is associated with Bills of Rights – as in the USA – compared with which the HRA is arguably a weak mechanism for the protection of human rights.(1) Effectively sets out the structure of the essay, which demonstrates to the examiner that the student has understood the parameters of the question.
The ECHR is a cautious document: it is not as open-textured as the US Bill of Rights and it contains long lists of exceptions to most of the primary rights – exceptions that 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. This was invoked in the Handyside case (1976) in respect of a booklet aimed at schoolchildren that was circulating freely in the rest of Europe. It was held that the UK government was best placed to determine what was needed in its own country in order to protect morals, and so no breach of Art 10 had occurred. The decision in Otto-Preminger Institut v Austria (1994) was on very similar lines: it was found that the ‘rights of others’ exception could be invoked to allow for the suppression of a film that might cause offence to religious people since, in allowing such suppression, the State had not overstepped its margin of appreciation. A somewhat similar course was adopted in The Observer and The Guardian v UK (1991) (the Spycatcher case). (2) Good use of relevant authority to illustrate the point.
In other areas, there has been an equal willingness to allow the exceptions a wide scope in curtailing the primary rights. In CCSU v UK (1987), the European Commission on Human Rights, in declaring the union’s application inadmissible, found that national security interests should prevail over freedom of association, even though the national security interest was weak, while the infringement of the primary right was very clear: an absolute ban on joining a trade union had been imposed.
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 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. The Court has also been relatively bold in the area of prisoners’ rights, holding in Golder (1975) and Silver (1983) that a prisoner’s right to privacy of correspondence must be respected, and rejecting the UK government’s arguments that an express or implied exception to Art 8 could be invoked.
It is possible at the moment to come to some interim general conclusions about the response of UK judges under the HRA to interpretations of the Convention rights at Strasbourg. The judges are failing to take the view that they should not apply a particular decision because it has been affected by the margin of appreciation doctrine. In other words, they could be said to be importing the doctrine ‘through the back door’, even though it is an international law doctrine that has no application in the domestic sphere. To an extent, this was the approach adopted in the leading pre-HRA case of DPP ex p Kebilene (1999): although the doctrine itself was rejected, the outcomes of applications at Strasbourg were taken into account without adverting to the influence the doctrine had had on them. Arguably, a similar stance was taken in the post-HRA case of Alconbury (2001). (3) A sophisticated point, which, alongside the strong analysis, lifts the essay to high 2:1 or first standard. Thus, the watering-down effect at Strasbourg of this doctrine may also be occurring under the HRA. The judges are also giving full weight to the express exceptions under Arts 8–11 of the Convention, even where Strasbourg might possibly have decided on a different outcome. This may be said of 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. Now that the ECHR has been incorporated and the interpretative jurisprudence of the ECtHR is being used in domestic cases as a guide (s 2 of the HRA), such exceptions and restrictions tend to offer judges a means of avoiding a controversial conflict with the government and possibly make it unlikely that a radical impact on UK law will exist in the long term. Lord Bingham has made it clear that Convention rights should be argued only where they truly apply and that any sudden explosion of human rights arguments, where unnecessary under Strasbourg jurisprudence, will not be supported (Ullah (2004)). Indeed, the 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) and in Alconbury (2001). (4) Good use of relevant authority. They have done so by relying on a case at Strasbourg, Sporrong and Lonnroth v Sweden (1982), in which it was said that the search for a balance between individual rights and societal concerns is fundamental to the whole Convention. Thus, it may be argued that the domestic judiciary has explored methods of watering down the rights, especially in the early days of the HRA, that might not have been so readily available had a tailor-made Bill of Rights been introduced.
However, the judges do have an important function under the HRA in giving primacy to the rights, even if, eventually, an exception to a particular right is allowed to prevail. The Strasbourg jurisprudence and the rights themselves make it clear that the exceptions are to be narrowly construed and that the starting point is always the primary right (e.g. Wright 2009). (5) Strong analysis. This difficult point is stated accurately, avoiding clumsy overstatement or excessive generality, which are common issues in student essays. 1 (6) It is important, if an essay is to achieve the highest marks, to refer to relevant academic analysis. This is in contrast to the previous position, in which the judges in some instances merely applied the statute in question (e.g. the Public Order Act 1986) without affording much or any recognition to the freedoms it affected. For instance, Art 14 has had an impact on the forms of discrimination that are unlawful in situations where another Convention right or freedom is engaged (Ghaidan v Mendoza (2004)), since Art 14 prohibits discrimination on any ground, without the restrictions in the UK’s current antidiscrimination scheme (e.g. discrimination on grounds of sexual orientation could occur until recently in the contexts of goods and services, housing, without giving rise to a cause of action). Strasbourg case law exists on discrimination on the basis of sexuality and transsexuality, religion, lifestyle, political opinion, or residence, and has broadened the right to equal treatment considerably (A and Ors v Secretary of State for the Home Dept (2005)).
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. Thus, Art 14 is largely ineffective in strengthening the existing provisions of sex discrimination and race relations legislation if invoked in the context of employment, because general employment claims fall outside the ambit of the other rights and freedoms (Baker 2006). (7) This is a good example of developing the depth of analysis – the question has an extremely broad ambit, which encourages some students to make very general points and, thus, lose marks. 2
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 incorporated into domestic law, but not entrenched on the US model; thus, it could be removed by the simple method of repeal of the HRA, as argued for currently by the Conservative Party. (8) Good use of a non-legal example, thus demonstrating wider knowledge of the subject. Moreover, the judiciary cannot strike down incompatible legislation. Entrenchment was rejected in order to maintain parliamentary sovereignty and to avoid handing over too much power to the unelected judiciary. This means that Parliament can deliberately legislate in breach of the Convention (ss 19 and 3(2)), (9) Reference to specific sections of relevant statutes – especially those mentioned in the question – is essential for a good essay. 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)), although a declaration of incompatibility can be made under s 4, as it was in that instance. In R(M) v Secretary of State for Health (2003), a declaration of incompatibility was made in relation to ss 26 and 29 Mental Health Act 1983, but by 2007, the government had failed to introduce remedial legislation.
The key provisions of the Anti-Terrorism, Crime and Security Act 2001 Pt 4 were declared incompatible with Arts 5 and 14 of the ECHR (protecting the rights to liberty and to freedom from discrimination) by the House of Lords in A and Ors v Secretary of State for the Home Dept (2005) in relation to persons detained under Pt 4. The government bowed to the pressure and repealed Pt 4. However, the decision of the Lords did not lead to the opening of the gates of Belmarsh; the government continued for a time to rely on the incompatible legislative provisions to imprison the detainees. There was no guarantee that the government would act to repeal the provisions. It is clear that citizens cannot always be certain of being able to rely on their Convention rights domestically. An entrenched Bill of Rights accompanied by a strike-down power on the US model would have provided them with that certainty and, at the sacrifice of parliamentary sovereignty as traditionally understood in the UK, would have, therefore, delivered an enhanced degree of rights protection. (10) Strong analysis and use of examples – relating the general point about entrenchment to a practical outcome in a case.
The use of ss 3 and 6 HRA as the means of affording the Convention further effect in domestic law means that there are inherent limitations to the rights protection that the HRA offers. 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)). Further, even if the citizen could probably obtain redress at Strasbourg in the particular circumstances (see Kay v Lambeth London Borough Council; Leeds City Council v Price (2006)), redress could be denied domestically if a House of Lords precedent stood in the way.
In reaching a conclusion on the question posed, it should be borne in mind that the ECHR was never intended to be used as a domestic Bill of Rights. It has been argued that the creation of such a new guarantee from scratch is an extremely difficult and complex task, and so it is understandable that the incorporation of the Convention was chosen as a (comparatively) quick and easy ‘fix’. But it may further be argued that due to the deficiencies of the Convention as a human rights guarantee for the UK, there should be a commitment towards creating a new Bill of Rights in the future. Once the impact of the HRA can be more fully evaluated, there will be room to consider whether further entrenched rights legislation is necessary and the form that it should take. If such a course were taken in the UK, then it would be brought into line with the experience of most of the other European signatories. These states already possess codes of rights enshrined in their constitutions, but the majority also adhere to a general practice of incorporation of state treaties into domestic law, either automatically, as in Switzerland, or upon ratification, as in Luxembourg. A domestic Bill of Rights could arguably cure the gaps, defects and inadequacies of the ECHR and the HRA. (11) The concluding paragraph effectively draws together the points of the essay to arrive at a final answer to the question.
1. J. Wright (2009) ‘Interpreting Section 2 of the Human Rights Act 1998: towards an indigenous jurisprudence of human rights’, P.L., 595.
2. A. Baker (2006) ‘The enjoyment of rights and freedoms: a new conception of the "ambit" under Article 14 ECHR’, 69 M.L.R., 714.