‘The Human Rights Act 1998 does not go far enough to protect the rights of individuals in the UK.’ Do you agree with this statement? Why?
This essay examines whether the Human Rights Act 1998 sufficiently protects individuals’ rights in the UK. The essay considers the declaration of incompatibility as a major limitation of the Human Rights Act using the Belmarsh detention case. Despite this limitation, I argue that based on the overall case law and reports on the Human Rights Act, it is overwhelming apparent that the Act goes far enough to provide individuals in the UK with protection of their rights.
The Human Rights Act 1998 (HRA), in force from 2 October 2000, has incorporated civil rights of the European Convention of Human Rights (ECHR) into UK law. As the first legislation attempting to protect human rights at home, it is important to explore its success in the last decade. In order to assess whether the HRA sufficiently protects individuals’ rights in the UK, this essay will consider the objective of the HRA and then analyse the case of A and Others v. Secretary of State for the Home Department (2004) to demonstrate the caveat of declarations of incompatibility. This case has particularly posed a challenge to the effectiveness of the HRA in upholding rights as fundamental. However, successes of the HRA provide overwhelming evidence that the HRA does go far enough to protect the rights of individuals in the UK.
Bringing Rights Home
The purpose of the HRA was to allow UK courts to provide a remedy to violations of rights in the ECHR and thereby avoid the cost of lengthy court cases at the European Court of Human Rights in Strasbourg. Not only did the HRA allow UK courts to consider relevant jurisprudence in Strasbourg (s2), but the Act also imposed obligations on public authorities to uphold Convention Rights (s6). The HRA is thus a domestic check of rights that links into the global human rights movement. Gearty argues that the language of civil liberties is more vulnerable than the language of human rights due to no requirement to be compatible (2005, pp. 27). Consequently, to use the phrase of the White Paper published in precedence of the HRA, it appears that the HRA has made an attempt at “bringing rights home” (Home Office, 1997).
Declarations of Incompatibility
Yet one of the limitations of the HRA can be clearly demonstrated particularly through the case of A and others v. Secretary of State for the Home Department (2004). While it held that indefinite detention of foreign prisoners in Belmarsh without trial was incompatible with Article 5(1) of ECHR because it was discriminatory on the grounds of nationality, this decision was only a declaration of incompatibility (s4). With just the ability to put political pressure on producing legislation compatible with human rights law, the judgement had no legal effect as the HRA (s4 (6a)) does not grant courts the power to invalidate Acts of Parliament. Furthermore, Lord Hoffman dissented with the opinion that the case overall was incompatible because the precondition of a ‘threat to the life of the nation’ was not present. It should also be noted that Article 6 of the ECHR outlining the right to a fair trial within ‘reasonable time’ was not considered in the judgement. This suggests that the courts only have an interpretative obligation allowing Parliament to remain supreme. The effectiveness of declarations of incompatibility is additionally questioned as the government replaced the Anti-Terrorism Crime and Security Act 2001 with the Prevention of Terrorism Act 2005, introducing ‘control orders’ that apply to both Britons and non-nationals. Fenwick claims that due to lack of judicial power, the government are able to pass such legislation restricting civil rights without fear of the law being struck down (2002, pp.194). The case at hand seemingly supports this perspective that rights can still be restricted, bringing into question of whether the HRA is committed to the idea of human rights as absolute.
Successes through the HRA
However, other cases have proved to be far more successful in deeming the HRA as effective in protecting individuals’ rights in the UK. Although Parliament is free to ignore Declarations of Incompatibility, Klug (2009) observes that Parliament has responded to all 18 Declarations of Incompatibility that have been made and not been overturned on appeal. For example, in Bellinger v. Bellinger (2003), the courts declared that not recognising gender change of post-operative transsexuals in marriage law is incompatible with Articles 8 and 12 of ECHR. This resulted in Parliament in passing the Gender Recognition Act 2004. Likewise, using the right to private and family life, Diane Blood won her case to have her children’s father recognised legally despite being conceived after his death (O’Loan, 2009: 78). The result was a change in the Human Fertilisation and Embryology Act 1990, which may have impacted approximately 50 families (Dyer, 2003). This demonstrates the ‘dialogue’ encouraged by the HRA between the courts and Parliament is sufficiently balanced where the HRA is properly implemented and does not fall victim to the will of politicians. This is supported by Gearty (2006) who states that cases such as the Belmarsh case as discussed previously indicates the balance is perfect because the strength is that judges are ‘part of a discussion’ rather than overriding legislation. In this sense, there is sufficient scope for the HRA to safeguard rights of individuals as fundamental and absolute.
On a similar note, Mathews et al. (2008) found numerous individuals, from all walks of life, have used the language of the HRA to improve the experience of public services without any direct remedy from the courts. The Equality and Human Rights Commission’s Inquiry also ascertained that the Human Rights Act has provided a rights-based framework for public services including in the NHS (O’Loan, 2009: 38). While Gearty (2006) suggests the possibility of a social and economic bill of rights similar to the HRA in the future, it seems there may not be a need given that the reach of the HRA is extensive.
To conclude, on the whole, the HRA has gone far as possible to protect the rights of individuals in the UK because it is overwhelmingly evident that the HRA is central to Britain’s human rights culture. It is used as a tool to protect individuals’ rights both in the courts and in wider society. The HRA has no doubt been challenged by cases such as those involving terrorist suspects as discussed in this essay. The power of courts to issue a declaration of incompatibility merely appears to be of a political nature. However, this has not been abused by the government by ignoring such declarations. Although the legal changes enacted as a result of the Belmarsh case had little effect in guaranteeing civil rights, other case law surrounding the HRA shows that Parliament has responded effectively to make legislation compatible with the rights in the ECHR.
A and Others v. Secretary of State for the Home Department (2004) UKHL 45. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2007/45.html [Accessed: 04/01/2013].
Bellinger v. Bellinger (2003) UKHL 21. [Internet] Available from: http://www.bailii.org/uk/cases/UKHL/2003/21.html [Accessed: 04/01/2013].
Dyer, C. (19 September 2003) Diane Blood Law Victory gives her Sons their ‘Legal’ Father. [Internet] Available from: http://www.guardian.co.uk/science/2003/sep/19/genetics.uknews [Accessed: 04/01/2013].
European Convention of Human Rights (1950) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 268-277.
Fenwick, H. (2002) Civil Liberties and Human Rights. 3rd Edition. London: Cavendish Publishing.
Gearty, C. (2005) “11 September 2001, Counter-Terrorism, and the Human Rights Act” in Journal of Law and Society. Vol. 32, No. 1. pp. 18-33.
Gearty, C. (2006) Language of Fear is Difficult to Beat. [Internet] Available from: http://www2.lse.ac.uk/humanRights/articlesAndTranscripts/SocialistLawyer.pdf [Accessed: 02/01/2013].
Home Office (1997) Rights Brought Home: The Human Rights Bill. The Stationary Office.
Human Rights Act (1998) In: Ghandhi, S. (ed.) Blackstone’s International Human Rights Documents. 7th Edition. Oxford: Oxford University Press. pp. 489-501.
Klug, F. (10 December 2009) Promoting and Protecting Human Rights. University of Westminster Law School.
Matthews, L. et al. (2008) The Human Rights Act – Changing Lives. 2nd Edition. London: The British Institute of Human Rights.
O’Loan, D. N. (2009) Human Rights Inquiry: The Report of the Equality and Human Rights Commission. Equality and Human Rights Commission