Public Law - Human Rights Act 1998 (HRA)

Public Law - Human Rights Act 1998 (HRA)

The Human Rights Act 1998 (HRA) is a fundamental section of the United Kingdom (UK) constitution. The HRA affects most areas of law and the actions performed by public bodies. In addition, the HRA offers transparency and greater openness in decision-making by the government and provides a framework for checking executive power. Under the HRA 1998, the requirement is to ensure that the court determines if a provision provided under the primary legislation is compatible with a Convention right.  The court must fully comply with the fact the provision is incompatible in reference to the Convention right in order to have the authority to make a declaration of that incompatibility. The HRA allows a court to issue a Declaration of Incompatibility. This paper explains the meaning and impact that this provision has had on UK law.

 The declaration of incompatibility as issued by the UK’s judges was meant to take into account the compatibility of Acts and statutes of public authorities with the obligations of the UK under HRA 1998, which integrated the ECHR into domestic law.  According to S4 of the HRA 1998, “If the court is satisfied (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility”. Thus, a provision is deemed as not being so compatible as to enable the making of a Declaration of Incompatibility. However, s6 of the HRA stipulates that a declaration of incompatibility has no effect on the operation, validity, or enforcement of the law. This implies that the law does not change the outcome of the declaration of incompatibility automatically. The court in this case implies to the Supreme Court and the Judicial Committee of the Privy Council as well as the High Court of Appeal. Both s4 and s10 of the HRA 1998 are provisions that have enabled the application of the HRA in the UK. For instance, s4 permits issuance of the declaration of incompatibility by the courts in cases where it is not possible to it is impossible to apply s3 to interpret primary legislation to establish compatibility with the European Convention of Human Rights (ECHR) articles. In some cases, it is applied where the interpretation to comply conflicts with legislative intent, hence acting as a measure of the last resort.

The HRA Declaration of Incompatibility has played a major role in ensuring that the rights of UK citizens are not infringed. For example, it has played an integral part in ensuring that where the law is incompatible, the rights of the people are protected. For example, the Parliament can easily remedy an incompatible legislation quickly through parliamentary procedure, and ensure the government of the day takes a declaration of incompatibility into account. Thus, through the HRA, the UK courts have the power to review decisions made by public authorities to ensure that human rights are protected under such decisions.[1] Also, a Joint Committee on Human Rights was established by the Parliament to provide advice concerning establishing HRA compatibility with the UK’s legislation. For example, in R (H) v MHRT North and East London Region, the case related to incompatibility of s 72 and 73 of the Mental Health Act 1983 with Articles 5(1) and 5(4) to discharge a patient. The application of the HRA Declaration of Incompatibility resulted in the amendment of the Mental Health Act 1983. The same was applicable in Re MB (Sullivan J) [2006] EWHC[2] where a declaration that was found to be incompatible with the HRA, especially Article 6 ECHR (right to a fair trial) was overturned.

A declaration that legislation is incompatible with HRA does not affect the changing the laws, in terms of its ability to continue to apply. Nonetheless, it has the power to prompt the Government as well as the Parliament to change the law which is not compatible and promote human rights. Therefore, the provision is important in the UK because it ensures that the Government considers if an Act is incompatible with the set rights.  For example, in Royal College of Nursing v Secretary of State for the Home Department case the court declared the provisions under the Safeguarding Vulnerable Groups Act 2006 were incompatible with the right to respect for private life and the right to a fair hearing as stipulated under the HRA. Subsequently, the provisions were amended with the aim of protecting the rights of children.  The provision has been helpful, as it has ensured that compatible provisions are amended to be in line with the HRA articles.

Bibliography

Cases

R (H) v MHRT North and East London Region [2001] EWCA Civ 415

Re MB (Sullivan J) [2006] EWHC 1000

Royal College of Nursing v Secretary of State for the Home Department [2010] EWHC 2761(Admin).

Books

Hoffman, David and Rowe, John. Human Rights in the UK: an Introduction to the Human Rights Act 1998 (2 ed.). (Harlow, United Kingdom: Pearson Longman, 2006)

Legislation

Constitutional Reform Act 2005 (c. 4), 

Human Rights Act 1998

Mental Health Act 1983

Safeguarding Vulnerable Groups Act 2006

Others

The National Council for Civil Liberties, “A Parliamentarian’s Guide to the Human Rights Act”, (online)