University of London Common Law Reasoning and Institutions Essay: The HRA 1998 has had little impact

upon protecting the basic liberties of British subjects and could be repealed without any consequence. Submitted By: Candidate number: L7743 Student name as registered: Monjur Morshed Asif Student registration number: 090485653

The Human Rights Act 1998 (HRA 98) is an Act of parliament of the United kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. It is recognized in British law as the European Convention on Human Rights, which had been ratified by the Council of Europe in 1953, but its origins go back even before the universal declaration of Human Rights in 1948 mentioned in Magna Carta of 1215.The HRA 98 was incorporated by the Labour Government with a view to bring the `Fundamental Rights home for the citizens of the UK, so that they do not have go to Strasburg for a breach of the Convention right. But it has been argued by many critics and Academics that the HRA 1998 had little impact upon protecting rights of citizens and could be repealed without any consequence. We should begin by considering the context. Politically, the long exile of the Labour party during the 1980s and the first half of the 1990s had one rather unexpected result. Labour came out of the political wilderness with a commitment to major constitutional change. The Human Rights Act was announced in 1997; given Royal Assent in 1998 and came into force on 2 October 2000. It was the centrepiece of a programme of major constitutional change, self-consciously proclaimed as unprecedented by its major architect, Lord Irvine of Lairg. The Human Rights Act was, thus, no ordinary statute. However, we should remember that incorporation of the European Convention on Human Rights (ECHR or the Convention) into domestic law was never a populist project - there was always an under-current of hostility. Labour agreed the policy at its Party Conference in 1993 at the instance of its then leader, John Smith. The newly adopted infant might be seen as having two intellectual parents - one legal and the other political: Lord Scarman, whose arguments in his 1974 Hamlyn Lectures influenced a generation, and Charter 88, a lobby group conceived as a reaction to Labour's defeat in 1987 with the intention of advancing a progressive constitutional agenda precisely because a political one appeared stalled. The common law has a long tradition of recognising and protecting basic rights, including many of those later enshrined in the ECHR. It has embodied these protections both generally in its own development and specifically in the judicial control of administrative actions by public authorities (through modern judicial review and its predecessor actions). Indeed it was this tradition to which the draftspersons of the ECHR looked when shaping the Convention rights, and only afterwards that different lines of authority developed in the UK and Strasbourg courts.

There is evidence that even before the election the Conservatives were beginning to take the point that a repeal of the HRA was not a legally simple matter, and to envisage their British Bill of Rights as incorporating ECHR protections. And, in fact, the recent Coalition Programme for Government makes it unequivocally clear that this is now the policy intention. It states that: We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights [and] ensures that these rights continue to be enshrined in British law Perhaps this is intended to take advantage of the helpfully ambiguous nature of the British Bill of Rights proposal. Or perhaps it can be regarded as a genuine concession which is attributable, like other inevitable policy compromises, to the requirements of coalition government with the (HRA-friendly) Liberal Democrats. In truth, however, it was always the only outcome that made any sense. Section 3 certainly provides that, 'so far as it is possible to do so', all legislationprimary and secondary and whenever enactedmust now be applied and given effect in a way which is compatible with the European Convention. However, upon closer examination we see that this is not as straightforward as it may first seem. The Government has a number of opportunities to avoid adverse rulings concerning incompatible legislation, virtually disregarding court judgements. Section 3 interpretation does not affect 'the validity, continuing operation or enforcement of any incompatible primary legislation' or subordinate legislation made under the authority of such legislation. Section 4 provides for the judiciary to make declarations of incompatibility in respect of primary legislation. This merely alerts the relevant Minister that there is a violation. There is no express mechanism for the Minister to review the issue. There is simply an implied assumption that he or she will. That said, the depth of the review process will invariably depend on the issue in question, the nature of the legislation under scrutiny and the Minister involved at the time. It effectively leaves the matter to the discretionary powers of the Minister of the day, amounting to an a ' la carte style of dealing with human rights issues. It is not an adequate mechanism for protecting human rights. Further, it politicises issues that should be decided by an independent and impartial tribunal, such as the court which issued the declaration of incompatibility. The main features of the Act which reflect the importance of Parliament's role are well known, but it is worth recalling them. The obligation on courts to interpret legislation compatibly with Convention rights is subject to the important qualification so far as it is possible to do so,9 indicating that there is a limit to the extent to which a court can change the meaning of legislation by

interpretation. If a court *E.H.R.L.R. 603 cannot remove an incompatibility by way of interpretation, it does not have the power under the Human Rights Act to strike the legislation down. Instead, it has the power to give a declaration of incompatibility, which does not make the measure unlawful, leaving it to Parliament decide whether it agrees that there is an incompatibility and, if so, whether and how to remedy it. The requirement in the HRA that a minister introducing a bill must make a statement as to its compatibility with Convention rights also reflects the importance of Parliament's role in the scheme of the Act: as well as disciplining the Government to conduct proper scrutiny of a Bill's compatibility with Convention rights at departmental level before its introduction, it provides a firm legal foundation for parliamentary scrutiny of a Bill's compatibility. Despite those limitations, the Act enabled the Government to better comply with its obligations under the Convention and to provide the individual with a more direct and effective way of enforcing their Convention rights without having to petition the European Court of Human Rights in Strasbourg. For example, s.2 allows the domestic courts to have regard to Convention case law and principles, and s.3 to interpret legislation, wherever possible, in line with Convention rights. In addition, s.4 allows higher courts to declare inconsistent legislation as incompatible with the Convention and ss.6-8 impose a general duty on public authorities not to interfere with Convention rights, and allow victims to seek direct remedies for breach of their Convention rights. The Human Rights Act has provided for greater compliance of domestic law with our obligations under the European Convention on Human Rights, which was the essential aim of the Act. There has been much discussion as to the efficacy of the Human Rights Act 1998. These discussions have centred on the strengthening of the Act's provisions and ambit and many have called for the extension of rights protection in the United Kingdom. In addition there has been much political and public debate on whether the Act has been successful in securing a fair balance between human rights and the more general interests such as national security, public safety and the prevention of crime. Specifically, there has been concern over the European Court's stance on the protection of the rights of those suspected of terrorism, and who are being threatened with deportation and extradition. A possible remedy to this situation may involve the replacing of the Act with a domestic Bill of Rights, which would more reflect British values and allow the introduction of a more appropriate Bill of Rights and Responsibilities for the citizen. Geoffrey Marshall has been explicit in voicing his alarm at the suggestion that the interpretive focus under s 3(1) 'is no longer what Parliament truly intended, or what a statute actually means, but what

it can be presumed that Parliament in enacting it possibly could have intended it to mean'. s.4's role as a machinery for purging the statute book of non-conforming provisions, and not as a means of achieving justice for a claimant in a particular case, is underlined by s.4(6), which emphasises that a declaration does not affect the rights of the parties; by there being no obligation that remedial action following upon a declaration should have retrospective effect, either in the case in which the declaration was made or otherwise; and by the contrast with s.3, which does require the court to give effect to the Community right in the litigation before it. The Equality and Human Rights Commission (EHRC) has warned that watering down the UKs human rights legislation would damage the countrys credibility internationally and undermine rather than enhance security. The warning coincides with a debate hosted by the main political parties will set out their positions in relation to the future of human rights legislation. The Conservatives propose repealing the Act and replacing it with a British Bill of Rights. Argues such a Bill could hardly offer less protection then than the Act as if it did litigants would have to seek redress at the European Court of Human Rights; the very that the act was designed to avoid. States the rationale for a British Bill of Rights is that it would strengthen rights by increasing the number of rights the courts protect and perhaps also entrenching them. In conclusion it might be argued that the Human Rights Act 1998 was enacted with the purposes of enforcing fundamental rights amongst the citizen and allowing their rights to be protected from the powerful bodies. If the UK is to develop a Bill of Rights, a process that advances rather than diminishes human rights protection and that is inclusive and transparent is required. Yet the inevitability of political opposition is itself an imperative to design a process so that it can withstand accusations that it is undemocratic, partisan or pre-determined. Thus from the above discussion of the relevant articles, it can be argued that the Human Rights Act 1998 is not being used in its original intention or purpose by its proponents.

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