Even before the Human Rights Act 1998 came into force on 2 October 2000, the media were predicting the demise of responsible society and the rise of a rights-obsessed culture. The public’s imagination was particularly captured by the possibility that speed cameras, school uniforms and working on bank holidays could all constitute a violation of the right to private life.
The Beckhams – early beneficiaries of the Human Rights Act
The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 was drafted following the atrocities of World War II and has been ratified by 41 of the Member States of the Council of Europe. The Convention guarantees basic human rights, including the right to life, the right to a fair trial, the right to freedom from slavery and the right to freedom of expression. Signatory States can bring proceedings against each other in line with the provisions of the Convention and, more importantly, an individual can bring proceedings against a signatory state, (although individuals cannot bring cases against each other). The Convention has been interpreted by the European Court of Human Rights in Strasbourg whose judgements are binding on any country appearing before it.
The provisions of the Convention have had an impact on domestic law since the first case was decided against the UK in 1975
(1), which resulted in the Prison Rules 1964 being amended. Cases brought to Strasbourg under the Convention also led to the abolition of corporal punishment in State schools.
(2) and to the replacement of the Drug Trafficking Offences Act 1986 by the Drug Trafficking Act 1994
(3) . However, individuals could not rely on the Convention in domestic courts until its provisions were incorporated into domestic law via the Human Rights Act. By allowing remedies for individuals whose rights have been infringed by public bodies the Act must be regarded as one of the most important pieces of constitutional legislation passed for centuries.
Since 2 October 2000, courts and tribunals in England and Wales have been required by s.3 of the Act to interpret legislation in a manner consistent with incorporated Convention rights.
Under s.4, a “declaration of incompatibility” can be made if primary legislation conflicts with a substantive right protected by the Convention. Incompatible legislation is subject to a “fast-track” procedure to change it. The Joint Committee on Human Rights, a Select Committee composed of members of both Houses of Parliament to consider human rights issues in the UK, has responsibility under s.10 of the Act for considering how to rectify declarations of incompatibility via a Remedial Order. There is a presumption that future legislation will be compatible with the Act and that the law will be amended to accommodate any further Protocols to the Convention signed by the UK.
The provisions of the Convention were incorporated into Scottish law via the Scotland Act 1998.
The first declaration of incompatibility was issued by the Court of Appeal in R v (1) Mental Health Review Tribunal, North & East London Region (2) Secretary of State for Health, ex parte H (2001) LTL 28/3/2001. It was held that ss.72 and 73 Mental Health Act 1983, which did not require a mental health review tribunal to discharge a patient if it could not be shown that that patient was suffering from a mental disorder warranting detention, were incompatible with the right to liberty and security protected by Art.5 of the Convention. At its first meeting on 20 July 2001, the Joint Committee on Human Rights minuted that its first priority was to look at a proposal for a draft Remedial Order on mental health tribunals and relevant written evidence from interested groups was requested.
Other instances of incompatibility have also included an imprisoned mother who successfully argued that her right to family life (Art.8) was breached by a blanket policy to remove her child from her at 18 months old (4) and the Court of Appeal ruling that s.127 (3) Consumer Credit Act 1974 was incompatible with a creditor’s right to peaceful enjoyment of possessions (Protocol 1 Art.1) after a debtor successfully argued that a loan secured against her car was unenforceable (5).
The right to life enshrined in Art.2 was used by the Family Division to extend the law of confidence to protect Jon Venables and Robert Thompson against the serious risk of injury or death that they faced should their identities or whereabouts be revealed by the media (6).
One applicant successfully invoked the right to freedom of thought, conscience and religion in Art.9 in order to get her husband’s remains exhumed from consecrated ground on the basis that neither she nor her husband had any Christian allegiance (7).
Even questions relating to tax have also been considered in Strasbourg and taxation decisions in the domestic courts have been watched closely.
However, there have also been plenty of disappointed claimants whose challenges under the Human Rights Act have been unsuccessful, including a serving prisoner who claimed that his right to a private life, to found a family and to marry (Arts. 8 and 12) were breached by the denial of facilities for the artificial insemination of his wife (8).
Other cases involving prisoners found that there was no violation of a prisoner’s rights where he was denied the right to vote (9) or where a convicted murderer’s family were not allowed to make visits (10).
The rich and famous have not been slow to apply Convention provisions to uphold their rights. In separate cases, David and Victoria Beckham (11) and Michael Douglas and Catherine Zeta-Jones (12) invoked s.12 of the Act, in an attempt to prevent the publication of photographs. Whilst the Beckhams successfully argued that an injunction preventing the publication of photographs of their house should be continued, Douglas, Zeta-Jones and OK! magazine failed to stop Hello! magazine publishing photographs of the couple’s wedding on the grounds that it could by no means have been considered a private affair. The couple’s privacy rights had already been sold to OK!.
It is likely that the definition of a public authority (s.6(3) of the Act) will be tested as jurisprudence in this area develops.
The extent to which the Act will have an impact on the legal relations of private individuals has barely been addressed by the courts despite some heavy academic scrutiny.
The scope of s.22(4), which sets out that the Act has retrospective effect in “proceedings brought by or at the instigation of a public authority”, was considered in R v Yash Pal Kansal (2001) LTL 24/5/2001.The appellant had his criminal conviction quashed as unsafe in view of authoritative decisions since his trial. However, an applicant who argued that the failure to offer him an oral hearing after he failed his PGCE breached the Convention was unsuccessful because s.22(4) did not allow the Act to be applied retrospectively to proceedings brought by an individual (13)
Employers remain preoccupied with the implications of the Act regarding the use of surveillance in the workplace following the finding in Strasbourg that the interception of office telephone calls contravened Art.8 (14).
Civil rights campaigners are also questioning the compatibility of the Regulation of Investigatory Powers Act 2000 with the Human Rights Act, so there will be plenty to watch in this area.
The Human Rights Act raises complex issues of law and its scope is enormous. Many decisions already made are subject to appeal and a number of important questions have yet to be resolved.
Forthcoming litigation includes individuals seeking the right to die and companies seeking to assert intellectual property rights under the Act. Although it is impossible to predict the many challenges that are likely to appear in the coming months, it is undeniable that the Human Rights Act will continue to be at the forefront of legal argument for a long time to come.
COUNCIL OF EUROPE
Socio-political organisation of European states
Act of Parliament
DECLARATION OF INCOMPATIBILITY
Statement by court that a statute conflicts with the Human Rights Act
Order amending primary legislation
MARGIN OF APPRECIATION
Discretion allowed to Signatory States
Balance between effect of a State’s Act and its aim
Pre-conditions for taking a case to Strasbourg
Compensation for financial loss
Compensation for non-financial loss
EQUALITY OF ARMS
Fair balance of power between the parties
Develops organically over time
Respect shown towards Signatory States’ political and cultural traditions
Application of Convention to Acts and/or legislation pre-dating the Convention
1 Golder v United Kingdom (1975) 1 EHRR 524
2 (1) Campbell (2) Cosans v United Kingdom (1983) 4 EHRR 293
3 Welch v United Kingdom (1995) 20 EHRR 247
4 R v Secretary of State for the Home Department, ex parte P : R v Secretary of State for the Home Department, ex parte Q (2001) LTL 20/7/2001
5 Wilson v First County Trust (2001) LTL 2/5/2001
6 (1) Jon Venables (2) Robert Thompson v (1) News Group Newspapers Ltd (2) Associated Newspapers Ltd (3) MGN Ltd (2001) LTL 8/1/2001
7 In Re Crawley Green Road Cemetery, Luton (2001) 2 WLR 1175
8 R v Secretary of State for the Home Department, ex parte Gavin Mellor (2001) LTL 4/4/2001
9 R v (1) Secretary of State for the home Department (2) Two Electoral Registration Officers, ex parte (1) Pearson (2) Martinez : Hirst v HM Attorney-General (2001) LTL 4/4/2001
10 R v Secretary of State for Health, ex parte L (2000)
11 (1) David Beckham (2) Victoria Beckham v MGN Ltd (2001) LTL 30/7/2001
12 (1) Michael Douglas (2) Catherine Zeta-Jones (3) Northern & Shell plc v Hello! Ltd (2000) LTL 12/12/2000
13 Elijah Jemchi v The Visitor, Brunel University (2001) LTL 25/7/2001
14 Alison Halford v United Kingdom (1997) 24 EHRR 523