The Effect of the Human Rights Act 1998
The HRA finally gave UK citizens the ability to enforce convention rights through the domestic courts. Public Authorities also have to behave in a way that is compatible with the Act.
Prior to the HRA, the UK courts could take the Convention into account where legislation was ambiguous, e.g Waddington v Miah [1974] 1 WLR 683, used Art. 7 to show that s.34 of the Immigration Act 1971 could not be interpreted as having retrospective effect but if the legislation was clear then the Convention would not be taken into account.
Following the HRA 1998 s.3 states that legislation has to be interpreted in a way compatible with Convention rights ‘so far as it is possible to do so’. This has moved the position forward but it is not absolute.
The HRA itself contains derogations (exceptions) that can be used Brogan v United Kingdom (A/145-B) (1989) 11 EHRR 117 (1988). The detention of suspects for up to seven days without judicial authority under the Prevention of Terrorism (Temporary Provisions) Act 1984 was found to violate Art. 5 but the Government argued that derogation from this was necessary on security grounds. The issue of detention has again become a matter of controversy following Government attempts to pass legislation for the detention of suspected terrorists.
The HRA finally gave UK citizens the ability to enforce convention rights through the domestic courts. Public Authorities also have to behave in a way that is compatible with the Act.
Prior to the HRA, the UK courts could take the Convention into account where legislation was ambiguous, e.g Waddington v Miah [1974] 1 WLR 683, used Art. 7 to show that s.34 of the Immigration Act 1971 could not be interpreted as having retrospective effect but if the legislation was clear then the Convention would not be taken into account.
Following the HRA 1998 s.3 states that legislation has to be interpreted in a way compatible with Convention rights ‘so far as it is possible to do so’. This has moved the position forward but it is not absolute.
The HRA itself contains derogations (exceptions) that can be used Brogan v United Kingdom (A/145-B) (1989) 11 EHRR 117 (1988). The detention of suspects for up to seven days without judicial authority under the Prevention of Terrorism (Temporary Provisions) Act 1984 was found to violate Art. 5 but the Government argued that derogation from this was necessary on security grounds. The issue of detention has again become a matter of controversy following Government attempts to pass legislation for the detention of suspected terrorists.
Human Rights and the Judiciary
The Courts are now required to interpret legislation in accordance with the HRA, and this it has been argued has altered and blurred the concepts of the separation of the powers even further, as judges are being required to interpret the law in accordance with the HRA. It is argued that this makes the judges too powerful, and that decisions can be made that are contrary to Government intention or policy.
Lord Irvine in 2001 however felt that there were limitations to the power judges would have stating that they ‘will not have the power to simply set aside Parliamentary Legislation. That would be inconsistent with our doctrine of Parliamentary Sovereignty. Instead the higher courts will be permitted to make a ‘Declaration of Incompatibility’ which will trigger a fast-track legislative procedure under which the Government with Parliamentary approval amend the offending legislation.’
The approach that should be taken by the judiciary, in the view of one eminent judge, Lord Justice John Laws, is that by ‘investing the new jurisprudence [under the Human Rights Act] with the framework and discipline of the common law, we shall make moderate and balanced decisions by the use of old and well tried methods. We shall not have to invent a new world or a new language.’
The Application of the Human Rights Act
The Right to Life – Article 2
This article has promoted much renewed debate regarding the right to life/right to die euthanasia debate.
The case of Airedale NHS Trust v Bland [1993] 1 ALL ER 821, although decided before the HRA came into force, looked at whether an omission, in this case withdrawing the method of nutrition and hydration would incur any criminal liability. Although permission was granted to withdraw feeding and no liability for omission to treat would be found against the doctors, the judges did state that it was not the place of the judiciary to form policy and it was a matter for the legislature.
Did this open the gateway for legalising euthanasia?
NHS Trust A v M and NHS Trust B v H, were heard in 2000 after the HRA came into force, and again the courts gave permission to withdraw treatment, providing that it could be shown that it was no longer in the patients best interest to receive treatment there would be no liability. It also held that in these circumstances an omission to treat would not be incompatible with Article 2.
In the above cases the patients were in persistent vegetative states and would never recover. What would be the case if treatment were withdrawn where a patient was still conscious? In Re B 2002, a woman who was kept alive by a ventilator went to court to seek permission for the ventilator to be turned off even though this would result in her dying. The judge held that the right of a competent patient to refuse treatment should be respected even if the result would be death.
A case that attempted to push the boundaries further was that of Diane Pretty, R (on application of Pretty) v DPP who sought to gain permission for her husband to help her die, as she would be physically incapable at that point of taking her own life unaided. The House of Lords and ultimately the European Court of Human Rights, Pretty v United Kingdom (2346/02), held that Article 2 guaranteed a right to life, but that it could not ‘without a distortion of language be interpreted as conferring a right to die’.
In some jurisdictions, there is legislation that allows assisted suicides in limited circumstances. However if a relative helps a person to travel to these countries with the intention of using these facilities, there is a possibility that the relative may face criminal charges on return to the UK.
Recently a woman has won the right to a review and clarification regarding the law on assisted suicide, including travelling abroad to die. The review is likely to take place in October 2009.
The Courts are now required to interpret legislation in accordance with the HRA, and this it has been argued has altered and blurred the concepts of the separation of the powers even further, as judges are being required to interpret the law in accordance with the HRA. It is argued that this makes the judges too powerful, and that decisions can be made that are contrary to Government intention or policy.
Lord Irvine in 2001 however felt that there were limitations to the power judges would have stating that they ‘will not have the power to simply set aside Parliamentary Legislation. That would be inconsistent with our doctrine of Parliamentary Sovereignty. Instead the higher courts will be permitted to make a ‘Declaration of Incompatibility’ which will trigger a fast-track legislative procedure under which the Government with Parliamentary approval amend the offending legislation.’
The approach that should be taken by the judiciary, in the view of one eminent judge, Lord Justice John Laws, is that by ‘investing the new jurisprudence [under the Human Rights Act] with the framework and discipline of the common law, we shall make moderate and balanced decisions by the use of old and well tried methods. We shall not have to invent a new world or a new language.’
The Application of the Human Rights Act
The Right to Life – Article 2
This article has promoted much renewed debate regarding the right to life/right to die euthanasia debate.
The case of Airedale NHS Trust v Bland [1993] 1 ALL ER 821, although decided before the HRA came into force, looked at whether an omission, in this case withdrawing the method of nutrition and hydration would incur any criminal liability. Although permission was granted to withdraw feeding and no liability for omission to treat would be found against the doctors, the judges did state that it was not the place of the judiciary to form policy and it was a matter for the legislature.
Did this open the gateway for legalising euthanasia?
NHS Trust A v M and NHS Trust B v H, were heard in 2000 after the HRA came into force, and again the courts gave permission to withdraw treatment, providing that it could be shown that it was no longer in the patients best interest to receive treatment there would be no liability. It also held that in these circumstances an omission to treat would not be incompatible with Article 2.
In the above cases the patients were in persistent vegetative states and would never recover. What would be the case if treatment were withdrawn where a patient was still conscious? In Re B 2002, a woman who was kept alive by a ventilator went to court to seek permission for the ventilator to be turned off even though this would result in her dying. The judge held that the right of a competent patient to refuse treatment should be respected even if the result would be death.
A case that attempted to push the boundaries further was that of Diane Pretty, R (on application of Pretty) v DPP who sought to gain permission for her husband to help her die, as she would be physically incapable at that point of taking her own life unaided. The House of Lords and ultimately the European Court of Human Rights, Pretty v United Kingdom (2346/02), held that Article 2 guaranteed a right to life, but that it could not ‘without a distortion of language be interpreted as conferring a right to die’.
In some jurisdictions, there is legislation that allows assisted suicides in limited circumstances. However if a relative helps a person to travel to these countries with the intention of using these facilities, there is a possibility that the relative may face criminal charges on return to the UK.
Recently a woman has won the right to a review and clarification regarding the law on assisted suicide, including travelling abroad to die. The review is likely to take place in October 2009.
