English Legal System - The Human Rights Act (Part 3)

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.

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.

English Legal System - The Human Rights Act (Part 2)

The Human Rights Act 1998

The Human Rights Act 1998 finally came into force in October 2000. The introduction of the Human Rights Act (HRA) 1998 has provoked much debate, criticism and media debate. The preamble to the Human Rights Act 1998 states that it is ‘An Act to give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights’.

The effect of this Act is to strengthen the rights of the individual, and the rights that have been laid down in the convention can now be enforced through the UK courts (s7) rather than going to Strasbourg. The UK courts are required under s3 to interpret all legislation in a way which is compatible with Convention rights ‘so far as it is possible to do so’.

This has lead to commentators questioning the future of Parliamentary sovereignty, although it should be noted that Parliament does still have the ability to repeal any legislation passed, the possibilities of this happening to the HRA is open to debate.

The judiciary are now faced with the task of trying to balance UK legislation with the Human Rights Act and this has lead to a number of highly controversial cases, together with its use in many cases which may not have originally been predicted. Michael Howard QC, MP stated that ‘it is because the so-called Human Rights Act involves a significant transfer of power from Parliament to the judges that it constitutes a profound weakening of our accountable democratic traditions’ The Times, 5 August 2000.

Others hold the conflicting view that the Human Rights Act has strengthened individual freedoms and democracy, and can be regarded as a step towards the UK gaining a Bill of Rights. 


The rights and freedoms contained in the Convention are set out in articles

Article 1
Places a requirement on the State to ‘secure to everyone in their jurisdiction the rights and freedoms [of the Convention]

Article 2
‘Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following a conviction of crime for which this penalty is provided by law’

Article 3 
‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment’

Article 4
‘no one shall be held in slavery or servitude…. No one shall be required to perform forced or compulsory labour’

Article 5
‘everyone has the right to liberty and security of person’

Article 6
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’

Article 7

‘No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence… at the time when it was committed. Nor shall a heavier penalty be imposed that the one that was applicable at the time the criminal offence was committed.’

Article 8
'Everybody has the right to respect for his private and family life, his home and his correspondence’.   
- Article 8.2 lists when there might be exceptions to this right, for example in the interests of national security

Article 9
‘Everybody has the right to freedom of thought, conscience and religion’

Article 10
‘Everyone has the right to freedom of expression’

Article 12
‘Men and women of marriageable age have the right to marry and found a family’

Articles 11 and 13
relates to freedom of assembly and association
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