Podcast: the Ugly
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 Ugly
This essay will consider whether a tailor-made Bill of Rights could contain more rights than the HRA and whether they are stronger. (1) This introduction is vague and appears to limit the enquiry to only certain elements of the question.
In particular, it could have included an antidiscrimination guarantee (2) Demonstrates that the student is unaware of Article 14 – a serious error. and 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, and thus the judiciary is powerless. (3) This statement required analysis of sections of the HRA in order to substantiate the point.
An example of this is YL v Birmingham CC (2007). Birmingham City Council had discharged its statutory obligation to make arrangements for providing residential accommodation to YL, who was 84 years old and suffering from Alzheimer’s, by contracting with Southern Cross Healthcare (SCH) to provide the accommodation. The Council paid most of the fee, but because the home chosen by YL was more expensive than usual, the remainder was met through contributions by family and South Birmingham NHS Trust. After a dispute, SCH gave YL notice to leave the home. She sought to resist being removed from the home, citing Art 8 ECHR, which gives a right to respect for the home, and s 6(3)(b) HRA. An argument heavily relied on in support of the appeal has been a comparison of the management by a local authority care home with the management of a privately owned care home. It was argued that the function of the local authority is unquestionably a function of a public nature. (4) This paragraph, while an accurate summary of YL, does nothing to explain its relevance to the previous sentence or the essay. This demonstrates that the student may only be reciting information on a case of which he or she is aware but does not understand.
The use of s 2 HRA means that the rights-infringing body does not have a ‘public function’ and 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 (Entick v Carrington). (5) The student clearly understands neither the sections of the HRA (ss 3 and 6), nor the relevant authority (e.g. Campbell (2004)), which related to a pre-existing common law action for breach of confidence.
The rights contained in the ECHR are fairly weak – containing long lists of exceptions to most of the primary rights. 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. In other areas, there has been an equal willingness to allow the exceptions a wide scope in curtailing the primary rights. (6) Some reasonable points are made here, but no legal authority is cited. This might be because of the margin of appreciation.
The UK would remain bound by the ECHR at the international level. This is a constitutionally appropriate situation at present, both in terms of the maintenance of parliamentary sovereignty and to avoid handing over too much power to the unelected judiciary. Moreover, the judiciary cannot strike down incompatible legislation. However, this does mean, as indicated earlier, that Parliament can deliberately legislate in breach of the Convention. It also means that prior or subsequent legislation is found to breach the Convention in the courts. (7) The question specifically requires the student to consider the question only in terms of enhanced rights protection and, thus, these considerations are irrelevant.
It all depends on whether (8) the UK judges give Students should avoid vague phrases like this full weight to the Articles of the Convention and not to the exceptions.