Rights protection in the United Kingdom
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The modern conception of rights in western society has its roots in the United Kingdom. Through foundational documents such as Magna Carta and the Bill of Rights, medieval Britain set the stage for the development of safeguards against the arbitrary removal and degradation of fundamental human liberties, often by limiting the exercise of executive power. Today, rights protection in the United Kingdom has evolved significantly and now involves the Council of Europe and the European Union, which, in tandem with the Human Rights Act 1998, the European Convention of Human Rights, and the EU Charter of Fundamental Rights, provide a robust source of rights protection in the United Kingdom.
The Human Rights Act
The UK Human Rights Act (HRA) closely emulates legislation drafted in Canada and New Zealand. It follows what is known as a dialogue or parliamentary model of human rights protection. Unlike the United States, the UK lacks a written, rigid constitution with a constitutionally entrenched Bill of Rights. Consequently, the HRA does not enable the judiciary to strike down or invalidate legislation that infringes upon human rights enshrined in the HRA. Instead, the Act operates to encourage a close dialogue between the courts, parliament and the executive on human rights issues through declarations of incompatibility. Furthermore, it prompts a consideration of the impact of the legislative process on rights by guiding the judiciary’s interpretation of statutes and requiring ministers to issue statements of compatibility when attempting to pass legislation through parliament. The HRA also introduces a form of judicial review of administrative action, by allowing individuals who have had their rights adversely affected by public authorities to bring their case to the courts. Finally, the HRA has been said to bring rights “home” to the UK by allowing superior court justices to analyse and interpret the rights set out in the Act, where previously this role would have been delegated to the European Court of Human Rights.
What rights does the HRA protect?
The HRA protects the rights set out in the European Convention of Human Rights. The Act covers the following:
• Right to Life
• Freedom from torture and degrading treatment or punishment
• Freedom from slavery and forced labour
• Right to Liberty and security
• Right to a fair trial
• Freedom from punishment or criminal sanction without following due process
• Right to respect for private and family life
• Freedom of thought and religion
• Freedom of expression
• Freedom of assembly and association
• Right to marry
• Freedom from discrimination
See schedule 2 of the Act for further details about these rights and the scope of protection offered by the HRA. Alternatively, <https://www.equalityhumanrights.com/en/human-rights/human-rights-act> provides an excellent summary of each of the European Convention Rights.
Interpretation of statutes:
Section 3 of the HRA provides that a court must interpret statutes in such a way that, “so far as it is possible to do so,” it is applied in a manner that is consistent with convention rights set out in the HRA. This provision is an influential guide to the process of interpretation, however it does not give judges a licence to “rewrite” legislation or drastically alter its original meaning. In these situations where legislation is clearly non-compliant, courts must make a declaration of incompatibility (see below).
Declarations of incompatibility:
Pursuant to section 4 of the Act, a court is able to make a declaration of incompatibility if a statute, when applied to the facts of the case, produces a result that is inconsistent with human rights principles set out in the HRA. As stated above, this does not mean that the statute is invalid or ineffective. However, a swift response from the minister responsible for the statute is expected. The relevant minister, in accordance with section 10, can make a remedial order to address the incompatibility. While a minister is not compelled to do so (a necessary measure in order to preserve the principle of parliamentary sovereignty), usually the legislation will be amended to remove the source of incompatibility. By bringing the human rights implications of the statute to the attention of the executive in parliament, the court system is able to ensure that any infringements upon rights always become a public issue. As failing to amend a statute that abuses human rights will necessarily result in intense scrutiny by members of the public, the political cost of failing to address a declaration of incompatibility successfully encourages ministerial departments to amend statutes and ensure compliance with convention rights.
Statements of Compatibility:
Before legislation is even passed, the minister introducing the bill into parliament must determine whether or not the proposed statute aligns with convention rights. This informs parliamentary debate, in that, if a bill is openly non-compliant with human rights, it will likely face considerable scrutiny from opposition members of parliament, and may not be successfully passed. It follows that this requirement, under section 19 of the HRA, is an effective counter-measure that ensures potential human rights abuses are prevented before they even occur. However, it is not without its limitations.
The 29th report of the Joint Committee of Human Rights notes that a minister only needs to sign a statement of compatibility. It does not require a detailed analysis of the reasons why a statute is or is not compliant with convention rights. As a consequence, more informed parliamentary debate might not be possible under this scheme. However, the Joint Committee of Human Rights serves as an effective substitute, as this independent commission reviews all bills in light of the human rights principles set out in the HRA, as well as those contained in the international charters to which the UK is a signatory, for example the United Nations conventions on social, economic, civil and political rights.
Public Authorities:
Section 6 requires public authorities to act in a way that is consistent with convention rights. Failing to do so is unlawful, and allows a victim of the authority’s improper conduct to seek redress through the courts. In accordance with section 7 and 8 of the HRA, a victim can sue for damages and or acquire a remedy in the form of a court order quashing the administrative action. This section of the HRA provides an adequate source of protection, however, it is limited in the sense that, if the conduct of the public authority is authorised by legislation, a court cannot provide a remedy and may only be able to issue a declaration of incompatibility with regard to the legislation authorising the actions of the authority.
Post-Brexit and its implications for the protection of human rights in the UK
Following the recent Brexit vote, the UK is poised to leave the European Union. This has important implications for the extent of human rights protection offered to citizens of the UK. Firstly, it should be noted that the European Convention of Human Rights, which is enshrined in UK domestic law by the HRA, is a document associated with the Council of Europe, not the European Union. It follows that the UK’s decision to split from the EU (as opposed to the Council) should not affect the existing system established under the HRA. However, given that the Charter of Fundamental Rights is a EU document, and the UK will soon cease to be a member state of the Union, protections afforded by this charter will no longer be available. Previously, domestic UK law that infringed upon rights set out in the Charter could be struck down in accordance with the doctrine of supremacy of EU law.
According to the doctrine, where there is a conflict between the domestic law of a member state and the law of the Union, the law of the Union prevails. Given that the Lisbon treaty incorporated the Charter of Fundamental Rights into EU law, any conflict with the charter invokes the doctrine of EU supremacy. It is unfortunate that this source of protection is likely to no longer be available to the citizens of the UK, given that the EU charter includes many additional rights not covered by the HRA. For example, the EU charter has been regarded as a more modern document than the Convention, which has been instrumental in improving workers rights, as well as addressing contemporary issues associated with bioethics and data protection.
The following links provide access to useful documents and webpages considering the impact of Brexit on the scope of human rights protection in the UK for those who wish to learn more:
http://ukandeu.ac.uk/explainers/brexit-and-a-british-bill-of-rights-four-scenarios-for-human-rights/
http://rightsinfo.org/brexit-doesnt-mean-uk-human-rights/
http://www.halsburyslawexchange.co.uk/what-now-for-human-rights-in-the-uk-post-brexit/
http://www.lse.ac.uk/europeanInstitute/LSE-Commission/Hearing-6---The-implications-of-Brexit-for-fundamental-rights-protection-in-the-UK.pdf
The HRA provides an adequate source of rights protection for citizens of the UK. By limiting the power of public authorities to infringe upon rights, and providing a mechanism by which the courts can encourage parliamentary review of legislation, it creates a robust system of rights protection that also aligns with the UK’s existing constitutional framework. The HRA becomes all the more important in light of the UK’s split from the European Union, which puts at risk other mechanisms of rights protection that were once available to UK citizens.
References
[1] Jonathan Black-Branch, ‘Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law’ (2002) 23 Statute Law Review, 64
[2] Ibid
[3] Equality and Human Rights Commission, The Human Rights Act 1998 EHRC Website <https://www.equalityhumanrights.com/en/human-rights/human-rights-act>
[4] Ibid
[5] Human Rights Act 1998 (UK) s 3
[6] Julie Debeljak, ‘The Human Rights Act 1998 (UK): preservation of parliamentary supremacy in the context of rights protection’ (2003) 9(1) Australian Journal of Human Rights 199
[7] Human Rights Act 1998 (UK) s 4
[8] Julie Debeljak, ‘The Human Rights Act 1998 (UK): preservation of parliamentary supremacy in the context of rights protection’ (2003) 9(1) Australian Journal of Human Rights 210
[9] Ibid 218
[10] Human Rights Act 1998 (UK) s 10
[11] Jonathan Black-Branch, ‘Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law’ (2002) 23 Statute Law Review, 75
[12] Human Rights Act 1998 (UK) s 10
[13] Julie Debeljak, ‘The Human Rights Act 1998 (UK): preservation of parliamentary supremacy in the context of rights protection’ (2003) 9(1) Australian Journal of Human Rights 217
[14] Human Rights Act 1998 (UK) s 19(1)
[15] Joint Committee on Human Rights, Twenty-Ninth Report, House of Lords and House of Commons Paper No 29, Sessions 2007-2008 (2008) 224
[16] Parliament of the United Kingdom, Joint Committee on Human Rights – role, Parliament of the United Kingdom website <http://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/role/>
[17] Human Rights Act 1998 (UK) s 6
[18] National Council for Civil Liberties, How the Human Rights Act works, National Council for Civil Liberties Website <https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/how-human-rights-act-works>
[19] Jonathan Black-Branch, ‘Parliamentary Supremacy or Political Expediency?: The Constitutional Position of the Human Rights Act under British Law’ (2002) 23 Statute Law Review, 69
[20] Katie Boyle and Leanne Cochrane, Brexit and a British Bill of Rights: four scenarios for human rights, The UK in a changing Europe <http://ukandeu.ac.uk/explainers/brexit-and-a-british-bill-of-rights-four-scenarios-for-human-rights/>
[21] Ibid
[22] Welsh Government and Westlaw UK, The tension between the supremacy of EU law and Parliament’s continuing sovereignty, Law Wales.gov website
<http://law.gov.wales/constitution-government/how-welsh-laws-made/introduction-to-european-law/tension-eu-parliament/?lang=en#/constitution-government/how-welsh-laws-made/introduction-to-european-law/tension-eu-parliament/?tab=overview&lang=en>
[23] Flaminio Costa v ENEL (European Court of Justice, Case No 6/64, 1964)
[24] LSE European Institute, The Implications of Brexit for fundamental rights protection in the UK (25 February 2016) <http://www.lse.ac.uk/europeanInstitute/LSE-Commission/Hearing-6---The-implications-of-Brexit-for-fundamental-rights-protection-in-the-UK.pdf>
[25] European Commission’s Directorate General for Justice and Consumers, EU Charter of Fundamental Rights (11 July 2016) European Commission Justice Website <http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm>
