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	Alternative Law Journal

United Kingdom: A significant new Act?

Human rights (with qualifications). CLAIRE HARRIS reports from the UK.

Claire Harris is undertaking postgraduate studies in law at Cambridge University.

The absence of a charter of rights in Australia became even more conspicuous with the enactment in the United Kingdom of the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law. After what has been described as a remarkably quick passage through Parliament, the Act received the Royal Assent on 9 November 1998. It has been greeted with enthusiasm by human rights lawyers, and with nervous apprehension by many judges and practitioners who fear not only the impact of justiciable human rights on English common law traditions, particularly parliamentary sovereignty, but also the task of becoming familiar with decades of jurisprudence on the Convention.

The comparatively quick passage[1] through the legislature of such a significant piece of legislation should not overshadow the fact that comprehensive human rights legislation in the United Kingdom has been a long time coming. There have been calls for incorporation of the Convention, or enactment of a separate Bill of Rights, since the 1970s,[2] calls joined more recently by judges and parliamentarians.[3] The frequent counter-argument, that the English common law system was adequate to safeguard rights and freedoms, rang a little hollow in light of the comparative frequency with which the UK was found by the European Court of Human Rights to have violated the Convention.[4]

With the commencement of the Act, ‘public authorities’ will be prohibited from acting incompatibly with a Convention right (s.6(1)). The definition of ‘Public authorities’ is relatively broad and includes courts and tribunals. This has led to speculation that extension of the requirement of acting compatibly with the Convention to courts and tribunals may result in the Act being given horizontal application in proceedings between private citizens. At minimum it can be expected to lead to the common law being developed in future in ways compatible with Convention rights.

The Act also introduces new statutory interpretation requirements. Wherever possible, primary and subordinate legislation ‘must be read and given effect in a way which is compatible with Convention rights’ (s.3(1)), without requiring any prior ambiguity (as is required by the common law). Section 19 provides for a certification procedure, which requires the Minister with responsibility for a particular Bill to certify that the Bill is compatible with Convention rights or that ‘he’ wishes to proceed although the certification cannot be made.

The Act, and particularly the interpretative provisions which no longer look for parliamentary intent but for compatibility with the Convention, should certainly change the courts’ approach to human rights issues in the UK, where use of the unincorporated Convention was traditionally approached with considerable caution.[5] Equally significantly from a practical viewpoint, recourse to the European Court in Strasbourg, with the long delays that this involves, will no longer be necessary. The right of complaint to the European Court will remain open, which may be important if the UK courts take a conservative approach to the Act.

The Act is significant in a legal system which traditionally conceived rights in terms of negative liberty. However, the Act has a number of limitations which mean that its impact may not be as immediate or dramatic as might be hoped.

Most of the Act is not yet in force, and will not be until a date determined by the Secretary of State (likely to be late next year). One rationale for the delay is to give the government time to attempt to conform legislation and administrative practice to the Convention, not a particularly convincing reason given the length of time for which the UK has had international law obligations to conform its practice to the Convention. A more persuasive reason may be the need for judges, civil servants and lawyers to become familiar with Convention jurisprudence. Decisions of the European Court of Human Rights and the Commission must, according to s.2(1) of the Act, be ‘taken into account’ by courts and tribunals in questions relating to Convention rights.

Not all of the Convention has been incorporated by the Act. Importantly, article 13, which provides for an ‘effective remedy before a national authority’ for any breach of the Convention, was not included, probably to avoid the courts fashioning from it any new remedies. Remedies against public authorities provided for in the Act are discretionary, to be awarded where the court thinks it ‘just and appropriate’ to do so (s.8). Only the First and Sixth Protocols to the Convention are incorporated, as the UK has not ratified the other protocols which are in force, Protocols 4 and 7 which relate, among other things, to freedom of movement and non-expulsion of aliens. The UK’s reservations to the Convention are incorporated into the Act, as is its derogation from article 5 of the Convention which requires that detainees be promptly brought before a judge. The derogation was made in relation to the otherwise non-compliant Prevention of Terrorism (Temporary Provisions) legislation which in its duration has proved far from temporary.[6]

The most obvious limitation of the Act is that it does not permit judicial review of legislation or otherwise give the Convention overriding status over inconsistent legislation.[7] The requirement for public authorities to act compatibly with Convention rights is subject to the caveat that it does not apply if the authority could not have acted differently because it was applying other primary legislation. Incompatibility of legislation with Convention rights does not affect the validity of the legislation (s.3(2)(b)). The government instead opted for a novel mechanism not found in previous rights instruments — a ‘Declaration of incompatibility’, which higher courts may make where a provision of legislation is incompatible with the Convention. A Declaration does not affect the validity of the legislation but triggers a discretion in the responsible Minister to initiate a fast-track legislative procedure to amend the legislation to remove the incompatibility. This may result in the legislation complying prospectively, but because the Declaration has no effect in the proceedings in question, it leaves the applicant who has established a breach of Convention rights with no remedy, winning in theory but losing in the practical result.

In the mixture of relieved welcome and nervous uncertainty which has greeted the Act, there has been surprisingly little debate over whether the Convention (which was, after all, formulated over 50 years ago as a regional rather than national instrument) is the best model for a charter of rights, and whether it will prove adequate in addressing contemporary human rights issues in the UK. The answer is largely in the hands of the judiciary, who will at least have a new tool to work with in the protection of human rights, hopefully more consistently than in the past.

References

[1] It was introduced into the House of Lords on 23 October 1997, thereby taking over a year. However, compare with lack of progress on other law reforms, such as the Criminal Code proposed by the Law Commission in 1968 — see Lord Bingham, ‘A Criminal Code: Must we Wait Forever?’, [1998] Crim LR 694.
[2] See, for example, Zander, M., ‘A Bill of Rights?’, Sweet and Maxwell, 1975; and Lester, A., ‘Democracy and Individual Rights’, Fabian Tract No. 390, 1968. See also, for example, Lord Wade’s Bill of Rights Bill which was introduced into the House of Lords in 1976 and after some delay passed, but was then rejected in the Commons.
[3] See, for example, Lord Bridge in Attorney-General v Guardian Newspapers, [1987] 1 WLR 1248 at 1286; Bingham, Sir Thomas, ‘The European Convention on Human Rights: Time to Incorporate’ (1993) 109 LQR 390; Sedley, Sir S., ‘Human Rights: A Twenty-First Century Agenda’ [1995] PL 386. Human Rights Bills were also introduced by Lord Lester in 1995 and 1997.
[4] See for example, Ireland v UK (1978) 2 EHRR 25; Brogan v UK (1988) 11 EHRR 117; Malone v UK (1984) 7 EHRR14; Sunday Times v UK (1979) 2 EHRR 245.
[5] See R v Secretary of State for the Home Department; ex parte Brind [1991] 1 AC 696; cf Attorney-General v BBC [1981] AC 303.
[6] The current Act (Prevention of Terrorism (Temporary Provisions) Act 1989) has its origins in the Prevention of Violence (Temporary Provisions) Act 1934 and subsequent acts. It was the detention without judicial review powers in the Prevention of Terrorism (Temporary Provisions) Act 1984 which were found to breach article 5(3) of the Convention, in Brogan v UK (above), leading to the UK’s derogation and the replacement of the Act with the current 1989 Act.
[7] This can be compared with the European Communities Act 1972 which confers a power to disapply legislation which is incompatible with European Communities legislation.