AS revision: the Human Rights Act

This posting draws your attention to a new story about how the HRA has been employed by judges to strengthen rights protection. There is also a lengthy revision note about how the HRA has impacted on the judiciary.

Today’s Independent reports that the High Court ruled that the HRA’s right to life applies to the armed services in a case brought by the family of Private Jason Smith, a TA soldier who died of heat stroke in Iraq. It seems likely that the government will appeal to the Law Lords, but senior military officers do not expect the High Court decision to be overturned.

Students may wish to incorporate the above example into a revision note I have worked through with my groups:

The following points could be used to suggest that the role of the judiciary has been changed to a large extent since the passage of the HRA

• Since the Human Rights Act (1998) came into force judges have been unafraid to declare government policy incompatible with the European Convention on Human Rights (particularly in relation to terrorism):
o In 2002 the Law Lords unanimously ruled that the Home Secretary’s power to increase the minimum tariff recommended by the trial judge for convicted murderers is ‘incompatible’ with Article 6 of the ECHR (the right to a fair trial);
o In 2004 the Law Lords ruled 8-1 against the government’s indefinite detention of terrorist suspects in Belmarsh and Broadmoor prisons;
o In 2005 judges declared that evidence gained under torture was inadmissible;
o In October 2007 the Law Lords ruled that 18 hour curfews were in breach of civil liberties under the ECHR.

• Charlie Falconer, the former Lord Chancellor and DCA minister talks of the effect of the HRA in opening traffic to the ECHR:

“There is no doubt that the Human Rights Act has also established a “dialogue” between English
judges and the European Court of Human Rights. The close analytical attention paid by the
English courts to the European Convention on Human Rights case law is respected in Strasbourg, and has become influential on the way it approaches English cases.”

• Cynics have also suggested that the security of the nation has been threatened as a result of the newly granted powers: we have to question whose civil liberties it is that judges are protecting by overturning large chunks of the government’s anti-terrorist legislation (via judicial review often with reference to the Human Rights Act). To allow hijackers to remain in the UK because it is supposedly unsafe for them to return to their home country may protect individual liberties, but potentially undermines the collective security of the UK.

• It could be argued that the HRA and incorporation of the ECHR has given the judiciary a new sense of legitimacy, especially in the field of terrorism: judges can also act as a pressure group via their comments (sometimes off the record) to the media, in the House of Lords, or when summing up cases: in 2003 Lord Woolf (the ex Lord Chief Justice) attacked Blunkett’s plans to restrict the sentencing powers of judges; in 2004 Lord Hoffman declared during the Belmarsh trial that the government’s anti-terrorism laws were a greater threat to liberty than terrorism itself;

• Further evidence that judges have become more politicised as a result of the HRA is the impact they have had on politicians: in the summer of 2006, Tony Blair was sufficiently outraged by a High Court decision which allowed Afghan hijackers temporary leave to remain in Britain as ‘barmy’, an unprecedented attack on a ruling by a Prime Minister.

The following points could be used to suggest that the impact of the HRA on the judicial branch has been overstated

• Much has been made about the passage of the Human Rights Act, but this change does not give power to the judicial branch to strike down actions of Parliament. In the highly controversial Belmarsh case, for instance, Parliament could have ignored the judgement declaring indefinite detention for foreign nationals. Further, even though Parliament chose not to ignore the judgment, the suspected international terrorists had to remain in prison until new legislation was written since the principle of parliamentary sovereignty makes it impossible to strike down primary legislation. Hence the HRA has provided a moral rather than legal check on the legislature.

• On a related note, according to the Department for Constitutional Affairs, the ‘vast majority’ of cases tried within senior courts which contain a human rights aspect ‘would have been lodged notwithstanding the implementation of the Act’. Further surveys indicate that of the cases that are tried under the HRA most were determined in favour of the status quo. In short, the HRA has been used sparingly and in only around 1% of cases since the act came into force have the courts declared British law incompatible with the ECHR.

• Charlie Falconer supports this point:

“Moreover, there have been only 11 occasions upon which the superior courts have upheld Declarations that Acts of Parliament were incompatible with the Convention rights, and on each occasion Parliament has passed further legislation putting the law back into conformity. Arguments that the Human Rights Act has significantly altered the constitutional balance between Parliament, the Executive and the Judiciary have therefore been considerably exaggerated.”

He goes on:

“The impact of the Human Rights Act upon the development of UK law has been significantly less, and significantly less negative, than some predictions made for it from 1997 onwards. Arguments based on the Human Rights Act have been raised across a whole range of civil and criminal litigation, and have been explicitly considered in about one third of the cases considered by the House of Lords since the Act came into force. But in many instances the courts would either have reached the same conclusion under common law, or found that the decision being challenged had been properly taken. And, in very many cases, human rights arguments have been rejected by the courts as being either misconceived or irrelevant to the case.”

• The tremendous growth in judicial review predates the passage of the HRA. Growth in judicial review indicates an increased willingness of the judicial branch to exercise its powers in declaring actions of ministers ultra vires (i.e. beyond their statutory power):
o Kenneth Baker: was found in contempt of Court for failure to comply with court order in asylum case
o Michael Howard: extension of sentences for Bulger killers unlawful
o Jack Straw: ban on journalists investigating miscarriages of justice overturned.

• All these cases suggest that the HRA has had little effect since they happened before it came into effect.

• The media has a tendency to report cases where the HRA is referred to, but tend not to focus as heavily on the outcome of the case being largely unaffected by the existence of the HRA. Falconer again:

“There are a number of reasons why the HRA does not affect the outcome of cases in which it is raised in argument. First, Convention rights may not be relevant on the facts of the particular case. For example, Diane Pretty’s attempt to challenge the Director of Public Prosecution’s refusal to provide an undertaking not to prosecute her husband if he assisted her to commit suicide failed because the European Convention on Human Rights did not contain an implied right to euthanasia (R (Pretty) v DPP [2002] 1 AC 800). The recent unsuccessful HRA challenge to the Hunting Act 2004 (R (Countryside Alliance) v Attorney-General [2006] EWCA Civ 817) failed, in part, because Article 8 was not engaged at all. Second, even if Convention rights are engaged, the court may hold that interference with the right is justified. For example, it has been held that the present statutory regimes relating to matters as disparate as the supply of water (Marcic v Thames Water [2004] 2 AC 42), the regulation of the solicitors profession (Holder v Law Society [2003] 1 WLR 1059) and the preservation of embryos (Evans v Amicus Healthcare [2005] Fam 1) are compatible with the European Convention on Human Rights. In R (Begum) v Denbigh High School ([2006] 2 WLR 719) the House of Lords held that, if (contrary to the view of the majority) a school’s refusal to allow a pupil to wear a jilbab at school interfered with her Article 9 rights, the interference was justified… The former Lord Chief Justice, Lord Woolf, has suggested that if the HRA had not been enacted, human rights would have been absorbed into the common law in any event as a result of “the changing legal environment and the increased importance attached to the rule of law around the globe”. he courts have increasingly been prepared to recognise “common law constitutional rights” similar in content to those found in the European Convention on Human Rights but independent of it. For example, the House of Lords’ conclusion in A (No.2) v Home Secretary ([2005] 3 WLR 1249) that the Special Immigration Appeals Commission in particular and the courts in general could not receive evidence obtained by torture was based not on the HRA, but on the common law, reinforced by international Conventions. It seems highly unlikely that the result of this case would have been any different before the HRA was enacted.”

• The rise in profile of judges could be said to have more to do with a drift to the right by successive Home Secretaries (and now Judicial Secretaries) than the HRA

o In 2005 senior judges revealed their anger in a newspaper interview about laws passed by the Labour government which, it was argued, curbed their powers; The former Lord Chief Justice, Lord Phillips, aired his reservations about England’s prisons crisis. In ‘leaked’ papers of a meeting, Phillips attacked the Criminal Justice Act 2003 for placing pressure on a prison system that is at record numbers; All of these points could have been made without the passage of the HRA