Whether the Human Rights Act 1998 Was a Constitutional Mistake - Essay Example

? Whether the Human Rights Act 1998 was a Constitutional Mistake? – An Analysis Introduction Of late, there has been wide public debate in UK over the Human Rights Act 1998 (HRA) (hither in after will be referred as HRA). Due to three high-profile cases namely the Afghani hijacker’s verdict1, the Chahal2 case and the Anthony Rice3 case which made the critics to vehemently argue that HRA, or the style in which it is being construed, is barring the UK Government from guaranteeing the safety and rights of the general public, and hence it should be either amended or repealed. In the above three cases, there have been a failure to consider for deportation of foreign prisoners who are held under terrorism charges which illustrated an obvious necessity to overhaul the HRA4. It is to be observed that HRA has created a scenario where it was deemed that all public bodies in UK would adhere to the Convention and offered power to the UK courts to hear challenges to any infringement. Thus, HRA has altered the style in which the UK courts would approach the domestic legislation. Further, the opponents of the HRA vociferously argue that since the rights violation is already covered under the common law, there is no need to legislate separate law namely HRA. The critics argue that the Human Rights Act 1998 was a constitutional mistake." This essay will discuss why there is a need to repeal the current form HRA in an analytical way and arrive at a conclusion. Whether the Human Rights Act 1998 was a constitutional mistake? Two main allegations charged against HRA is that it politicises the judiciary and take away the legitimate authority enjoyed by the elected representatives, and it advocates a blame or compensation acculturation whereby society turns to be progressively more contentious5. One of the serious allegations against the Human Rights Act 1998 is that it remains as a hazard to public safety and rights. For instance, immediately after 9/11 attack in USA, the then British Home Secretary made an open warning to the judiciary to cease applying the HRA in ways, which frustrated the UK government plans. The leader of the conservative party is of the opinion that suitable amendments should be made in the HRA to deport those who were encouraging terrorism in UK soil as the HRA was demonstrating to be a barrier to safeguard the lives of UK citizens. Conservative party is of the opinion that HRA has created a culture that has hampered law enforcement machinery and the control of convicted criminal and obstructed the deportation of terrorist suspects. Conservative is also of the opinion that HRA has not succeeded in safeguarding the corrosion of the traditional liberties and may have even offered a facade of respectability. Lord Chancellor during March 2009 viewed his anguish that HRA has been commoditised which was corroborated by those who stressed their privileges in a selfish way without having concerned with the privileges of others. Critics are of the view that HRA is more concerned with rights thereby totally neglecting responsibilities from UK citizens. Further, there has been ongoing discussion, whether or not the HRA has clouted the exact balance between the courts, Parliament and the executive. Critics have come against the provision in the Article 3 of the European Convention on Human Rights (ECHR) and deportation of terrorists which have placed the safety of the public at peril. Some critics vehemently argue that there should be a referendum, whether to retrench the Human Rights Act 1998 or not. Some critics have argued that there should be a referendum on any scheme to withdraw the HRA or to introduce the Bill of Rights which would basically cement some freedoms of individuals6. HRA will extremely impact statutory interpretation. HRA offers the court with the power and obligation to interpret and apply the law in a style that caters the ECHR obligations. It is alleged that HRA falls short of authorising UK courts to annul legislation, which is not compatible with the ECHR. Clause 3 demands the UK court to interpret the legislation in a style “to the extent that it is probable” gives effect to the rights offered under the Convention. This is construed to be a strong wording since the spotlight of the litmus test is on what is possible instead of what is reasonable. R v A7 is the most controversial case where s 3(1) has been employed. This case is pertaining with construction s 41 of the Youth Justice and Criminal Evidence Act 1999, which attempted to bar the casualty of a sexual crime being interrogated about her past sexual history. As the UK government wanted to stop detailed discussion about the victims in a rape case in public, it enacted the above section. In this case, the Appellant A, was charged with a rape offence, and he wanted to question the victim about the consensual sexual relationship that had occurred between the appellant and the victim in the earlier week of said supposed rape. However, this will amount to sexual history and hence naturally barred by virtue of s41.Nonetheless, the House of Lords was of the opinion that this evidence was so crucial in ascertaining a defence of consent, and barring the use could be probative evidence that would infringe the Article 6 of the ECHR. Hence, their Lordships cited s 3(1) unanimously and viewed that the elimination should be subject to an overriding authority of the judge to allow such questioning when if not allowed would result in the infringement of Article 6 of ECHR, the right to a fair trial. The decision in this case was vociferously criticised as the verdict of the House of Lords was indisputably divergent to the intentions of the Parliament. This is one of the cases where the intentions of UK parliament and ECHR differ and the UK courts taking sides with the ECHR principles thereby overriding the wishes of the UK Parliament8. Critics argue that when supreme of the parliament is questioned, then naturally HRA is a constitutional mistake as it usurps the power of the UK Parliament. Further, courts in UK will not employ the doctrine of implied repeal but will construe pre-Human Rights Act legislation wherever necessary to offer with Convention rights to make sure that judicial declaration of incongruity are a rare incidence. Hence, in reality, the exclusion of implied repeal principle will not much matter. Further, HRA will bring significant change in the nature of judicial review proceedings where alleged rights violations are made against public for acting and in infringement of Convention’s rights. In certain legal cases, UK court will be required to do merits-based review, associating disputed issues of fact, cross-examination and wider discovery and corroboration of social policy to facilitate the courts to repeal and maintain balance between conflicting interests or rights. In the background of fair trial provisions in the Article 6 of the Convention, certain procedural practices and rules may have to be re-evaluated. It is to be observed that the European principle of proportionality is adequately conciliatory to bar the UK courts from arrogating the role of the decision-maker while making sure that public authority are not employed extremely.9 In Chahal case10, UK government alleged that Chahal was to be deported to India on the footing that his presence in the UK jeopardised the national security. Chahal alleged that his deportation would be an infringement of his human rights conferred through Article 3 of ECHR. UK government contested that there was an implicit restriction to Article 3 ECHR and on the other hand, that there was a necessity to balance the menace of ill-treatment against the apparent peril to national security. However, ECHR court viewed that the national interest of the UK could not be applied to countermand the interest of the individuals where major grounds have been demonstrated for deeming that he would encounter ill-treatment if deported. However, in the aftermath of the 11 September 2001, terrorist’s attacks in UK, the government wanted to deport some suspected terrorist but could not be deported without infringing the Chahal rule. The Chahal case had led critics to vehemently argue that HRA as in the style, it being implemented, was obstructing the UK government from guaranteeing public safety and hence, it should be either amended or repealed11. In A v Secretary of State for the Home Department,12 where the courts considered the actions of the executives, even in the case of terrorists, violating the fundamental rights like the liberty without due process, UK courts have interfered in the governmental actions by citing the provisions in the ECHR. Courts are reluctant to recognize new rights in the Convention In “Bensaid v. the United Kingdom13”, Bensaid was taking treatment in UK for his psychotic illness, and he had been permitted for the same until a notice is given to leave the UK. Bensaid alleged that his deportation to Algeria would be tantamount to an infringement of Article 3 of the ECHR which deals with that no one shall be caused to degrading or inhuman treatment or torture or punishment, as in Algeria , he may not receive the same medical support what he received in UK. However, an UK court relying on the verdict given in D v. The United Kingdom14, viewed that his deportation would not infringe Article 3. Bensaid further alleged that his deportation would have a grave damaging impact on his private life under Article 8 of the ECHR. However, in this case, the court observed that the applicant had not adequately corroborated that he would experience degrading and inhuman treatment or be affected to the magnitude falling within the ambit of Article 8 if he was deported to Algeria. The court’s rationale was based upon that in case where the peril of said ill-treatment in the nation of return is seen to be not adequate enough to meet the standards of Article 3; Bensaid will also fail for the analogues’ reason under Article 8. Obviously, the court is unenthusiastic to acknowledge a general human right to good mental and physical health in cases of deportation. The main reason for this may be that in such instances, the direct onus of the Contracting State for the imposition is never of concern. HRA and Religious Freedom In the infamous case Leyla Sahin v Turkey15, ECHR supported the headscarf ban in educational institutions on the footing of laicism , is the only example in headscarf cases where ECHR court carried over a review under Article 9- the right to freedom of religion ,thought , thereby finding the headscarf ban to be a lawful intervention with the applicant’s religious freedom. Immediately, after Leyla case, more than hundred of similar petitions were filed by women wearing headscarf were rejected by the ECHR court. The ECHR court action in denying the subsequent petitions that HRA cannot be a relief when there is disrespect to the freedom of religion.16 Ambiguous Definition of Public Authority in HRA As per section 6(1) of the HRA, it is illegal for a public official to function in a manner, which is not compatible with a right under convention. The term ‘public authority acting unlawfully ‘is in its civil background and not in the criminal contour. Thus, no criminal sanction can be inflicted for the infringement of HRA. However , section 6(1) is silent who is a public authority , what does ‘acting’ connote, what does ‘incompatible’ connote and what relief can be sought due to this illegal act? The definition of ‘public authority’ is always going to be critical to how the Act functions in practice. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank17, the House of Lords acknowledged the differentiation between ‘hybrid’ and ‘core’ officials. Lord Nicholls observed that one complexity of being graded as a ‘core’ public body is that it may be impossible for that authority to look for to foot on the Convention rights itself. Though the Act covered this norm to the public authorities, but they prolong to refer to the state and thus, one ‘core’ public authority may not initiate action against another as this would refer a state filing case against itself. In Aston Cantlow case, the Court of Appeal held that a body can be termed as a public body if it has authority which an ordinary citizen or a private body lacks. However, the House of Lords turned down this viewing that it was too naive. Nonetheless, Lord Hope was of the view that a reference could be drawn from the Article 34 of the Convention and that a differentiation should be drawn between government organisation and non-government organisation. Majority of the Lords agreed with the Lord Hope finding that public authority could be ‘pure’ or ‘core’ public authorities. In Aston Cantlow18 case, the public authority in dispute was “Wilmcote with Billesley Parochial Church Council “since it is an established church. Further, “Parochial Church Councils (PCC)” is the establishment falling under the Church of England. Since, it is a well recognised church; it has been accredited with a public status by the law and explains their powers. However, the majority of Lords, including Lord Hope were of the opinion that this was not adequate to prove them as a public authority as they lack any governmental function and hence could not be regarded as a core authority.19 Judges are unwilling to apply proportionality In normal scenario, the court does not evaluate the sway of a decision –maker offers to a particular consideration. However, the court may intervene where an irrational or extreme weight is given to a factor. Under EC law, though, proportionality is footage for review and a measure for deciding limitations to Convention privileges in the HRA, but it is not confident that it is a unique test yet in English law. However, it can be said that the need that verdicts be “proportionate “and not extremely callous or onerous when less provisional measures are accessible, are part and parcel of the normal need for “reasonableness” in decision-making. The UK courts are under obligation under the HRA to take the “proportionality” needs into account when evaluating ECHR case. After the October 2000, the proportionality test is not to be obligatory under the HRA, but it is anticipated that UK court still employs it. It is to be remembered, due to this, UK courts are hesitant to apply the proportionality test in HRA cases. However, in the ECHR rights cases, when ECJ has applied the proportionality test, then, the ECJ approach will be binding on the UK courts in the community law cases20. In some verdicts, there has been unwillingness on the part of judges to employ a full proportionality analysis which has ended in courts not resolving for themselves whether there has been an inconsistent meddling with privileges offered under Convention. In R (Begum) v Headteacher and Governors of Denbigh High School21, the issue was whether it was alleged that the decision of a school that unless wearing a correct uniform ,the claimant could not attend the school was incompatible with the Article 9 (freedom of religion) and Article 2 of the Protocol No 1 (right to education) .However , in this case , the Court of Appeal found for the claimant but did not decide the proportionality of the intervention for itself thereby finding that the school was failed to take an appropriate measure in finding a solution to an issue cropped under Article 9.22 “The Declaration of Incompatibility “ There has been wide-spread criticism against the fundamental features of the design of the HRA. The significance of the concept of the sovereignty of Parliament in UK connotes that it is impossible for the courts under the HRA declaring an Act of Parliament not compatible with rights under Convention either to invalidate it or strike it at any manner. All that an UK court can do under section 4 (6) is to issue a declaration of incompatibility, which does not impact the enforcement provision or the validity or the continuing operation as regards to which it is offered and also does not bind the parties to the proceedings for which it is held. There is development of special rule for the elucidation of laws, which are labelled as incompatible with the HRA as held in Sheldrake v DPP23 , Ghaidan v Mendoza24 , and in R (Wilkinson) v Inland Revenue Commissioners25 .Now, under section 10 (2) of the HRA, the power is vested with the minister to remove the incompatibility. However, in many numbers of cases, ECHR has viewed that declaration of incompatibility is not a viable solution as the declaration is not binding on the parties to the proceedings. Since, the declaration has provided the respective minister with a power but not a duty, to alter the offending law thereby making it compatible with the convention as held in Burden and Burden v United Kingdom.26 As per Article 35 of the ECHR, if an application is presented to it, then, the applicant should have exhausted all the available remedies in his domestic courts. Since the declaration of incompatibility is not an effective remedy in the above cases, an applicant can directly approach the ECHR in the circumstances stated above thereby overlooking the domestic courts in UK27. Thus, ECHR takes away the jurisdictional independence in UK by allowing its citizens to approach the ECHR without recourse to local courts in UK. This issue is being cited by critics as one of the main reasons to repeal the HRA as it overrides UK Parliament and courts. Thus, the constitutional status of the HRA in UK is still contentious. 28 Should We Repeal the Human Rights Act 1998? According to Bill Cash, during the year 2010 alone, more than 300 foreign prisoners including massacres in UK have triumphantly evaded deportation as they maintained that under the Article 8 of HRA; they were entitled to have a human right to a “family life “in UK. It is alleged that shoddy phrasing of the obsolete Convention, as appreciated through the HRA, has been paved to the choking of the UK press , muzzling of freedom of speech and intrusion into privacy law are being experienced by the UK citizens. Bill Cash alleges that HRA destabilises the best customs of British freedom, which is said to be the mother of democratic principles. Due to the enforcement of Convention in UK, the British constitutional history is being rewritten now thereby losing its own charisma and charm. There is a necessity to safeguard the British parliament from the encroachment of European Parliament and Britains should unite together to save their constitution to become vanished.29 Jackstraw who introduced the HRA in 1998 was gravely disturbed after a decade of its introduction about the style and manner in which HRA was occasionally construed by the British courts. He viewed that he could comprehend why the Act was looked by its critics as “villains’ charter.” He consented that there existed real public anxieties about the manner in which the act is being used in certain cases by detainees to shun punishment or to stop the deportation process of religious extremists. He also censured the anxious judges for turning down to acknowledge the promises from ministers that such deportations were in the interest of nation30. Many reasons can be attributed to why conservatives are against HRA. Some visualise it as a charter for intervention in the state’s rights and socialism ; some other view it as an endeavour to adumbrate into the British legal setup a leftwing political and social schedule. Eurosceptics view it as a scheme of an anti-democratic plot that destabilises the supremacy of parliament and pledges the British autonomy over to the foreign court. Neoconservatives view it as a barrier to British armed forces in their war against terrorism. It is alleged that HRA barred the British government to deport Learco Chindamo, the murderer of head teacher Philip Lawrence, and UK police could not place “wanted “posters and hardcore pornography is available in UK prisons31. The Joint Committee on Human Rights in UK viewed that there is a wide public insight that the HRA safeguards only the unworthy like terrorists and criminals at the cost of law-abiding citizens32. Reacting to the verdict given by the House of Lords in Secretary of State for the Home Department v AF 33 , The Sun Magazine in its editorial observed that terrorist in UK does not function within the law, and ordinary citizens has to obey the law and this leave the citizens prone to mass murder and this is due to fault of the Human Rights Act34. It has been alleged that there has been a poor drafting of HRA as the variety of rights safeguarded is very limited especially the elimination of cultural, economic and social rights. According to the British Institute of Human Rights, the introduction of cultural, economic and social rights into HRA will act as additional catalyst forming a valid effort to muster support for the safeguard of human rights in the UK. 35 The European Commission against Racism and Intolerance in its Third Report on the UK viewed that despite the HRA offers further impetus to the ECHR in UK, it does not offer a broad overriding assurance against racial discrimination. 36 The general compliant against HRA in UK by the Conservative party includes that HRA does not safeguard the privilege to trial by jury and privileges to access to government information and safeguard of personal data.37 Conclusion Under the above background, the HRA can be regarded as truly an overdue window-dressing to dispel ever increasing and fully justified disparagement of in progress parliament excesses. It is alleged that due to HRA, rights in UK have been eroded faster and further in the recent decade than that of previous analogues’ period. At this juncture, a written constitution should be substituted in the place of HRA mainly to control parliament. It is to be noted that a carefully drafted constitution would make the HRA redundant; without it, any number of HRA legislation would mean without curing the diseases, just attempting to address the symptoms. BIBLIOGRAPHY Primary Resources Cases •A v Secretary of State for the Home Department • Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank • Bensaid v. the United Kingdom • D v The United Kingdom • Ghaidan v Mendoza • Learco Chindamo case • Leyla Sahin v Turkey • R (Begum) v Headteacher and Governors of Denbigh High School • R (Wilkinson) v Inland Revenue Commissioners • R v A • Secretary of State for the Home Department v AF • Sheldrake v DPP • The Afghani hijacker’s case • The Anthony Rice case • The Chahal case Statutes • European Convention on Human Rights • Human Rights Act 1998 • Youth Justice and Criminal Evidence Act 1999 Secondary Resources Books • Anagnostou D & Psychogiopoulou E, The European Court of Human Rights (BRILL 2009)178 • Barak A, Proportionality: Constitutional Rights and Their Limitations (Cambridge University Press 2012) 160 • Bianchi A & Naqvi Y, Enforcing International Law Norms Against Terrorism (Hart Publishing 2004)286 • Chance C, Constitutional Reform in the United Kingdom: Practice and Principles (Hart Publishing 1998)107 • Davis H, Human Rights Law: Definitions (Oxford University Press 2007) 437 • Gillespie A, The English Legal System (Oxford University Press 2009) 167 • Great Britain Parliament Committee, The Human Rights Act, DCA and Home Office Review (TSO 2006)3 • Lester and Pannick D, Human Rights Law and Practice (Butterworth 2004) 15 • Sandberg R, Law and Religion (Cambridge University Press 2010) 89 • UK Stationary Office, Referendum in the United Kingdom (TSO 2011) 25 Journals • European Commission against Racism and Intolerance, ‘Third Report on the United Kingdom ‘(2005) CRI 27, 5 • The Human Rights Act: the DCA and Home Office Reviews’ HC 1716 9’ [2006] HL 278, 75 Newspaper • The Sun, ‘Editorial’ (London 11 June 2009) 8 Websites • British Institute of Human Rights, ‘Response to the UK Government’s Draft 5th Periodic Report under the ICESCR’ (2007) < www.bihr.org.uk/documents/policy/bihr-response-to-the=governments-draft-periodic-report> accessed 20 April 2012 • Cash B, ‘Should We Repeal the Human Rights Act?’ (Opinion, 13 June 2011)> http://www.totalpolitics.com/opinion/160582/should-we-repeal-the-human-rights-act.thtml> accessed 19 April 2012 • Conservative Party , ‘It’s time to fight back- How a Conservative Government will tackle Britain’s crime crisis ‘(2007) < www.conservatives.com/pdf/britainscrimecrisis.pdf> accessed 20 April 2012 • Joint Committee on Human Rights -32nd , ‘Report, The Case of Afghan Hijackers’ ( UK Parliament Publications 14 Nov 2006) < http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/278/27805.htm> • Korff, D ‘ The Right to Life ‘ (Human Rights Handbooks No 8 2011) < http://echr.coe.int/NR/rdonlyres/16D05FDF-4831-47EC-AE6D-A2C760B0B630/0/DG2ENHRHAND082006.pdf> accessed 21 April 2004 • Peter Oborne,’ Enough Poison about Human Rights Act’ (The Guardian, 4 October 2009 accessed 19 April 2012 • Sparrow A,’ Jack Straw Plans to “ rebalance’ Human Rights Act’ (The Guardian, 8 December 2008) < http://www.guardian.co.uk/politics/2008/dec/08/human-rights-act-straw> accessed 19 April 2012 • Treasury Solicitor,’ The Judge over Your Shoulder’, (11 Feb 2000) > http://www.lawteacher.net/PDF/Guide%20to%20Judicial%20Review.pdf> accessed 19 April 2012 Read More