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(p. 155) 5. Human Rights Act 1998 

(p. 155) 5. Human Rights Act 1998
Chapter:
(p. 155) 5. Human Rights Act 1998
Author(s):

Alisdair A. Gillespie

and Siobhan Weare

DOI:
10.1093/he/9780198830900.003.0005
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date: 17 June 2021

By the end of this chapter you will be able to:

  • Identify the principal Articles of the ECHR.

  • Discuss which bodies are bound by the HRA 1998.

  • Assess how the HRA 1998 has been used in domestic contexts.

  • Understand the HRA 1998’s impact on the domestic legal system.

Introduction

In 1997 a Labour government was elected to power in the United Kingdom under the leadership of Tony Blair. One of the manifesto commitments of that administration was to incorporate the European Convention on Human Rights (ECHR) into domestic (UK) law. It was seen in the previous chapter that the Convention had been drafted in the aftermath of the Second World War but that the United Kingdom had traditionally decided that there was no need to incorporate it into domestic law arguing that its protections were all to be found in the common law.

By the 1990s there was a growing recognition that this was not true and Labour, who traditionally had been against incorporation, decided that the Convention should be given domestic force. The Human Rights Act 1998 (HRA 1998) is one of the most important pieces of legislation to have been passed in recent years but its impact was arguably overstated at the time.

This chapter will examine the HRA 1998 and discuss some of the important issues that arise from its use. An overview of the relevant Convention Articles will also be given.

The HRA 1998 itself is a short piece of legislation containing only twenty-two sections but this disguises its importance. In Chapter 2 the changes the Act has made to statutory interpretation were considered and it has been seen that there was a definite change of mindset when human rights issues were involved. However, it is important that we recall that the HRA 1998 does not completely rewrite statutory interpretation and that it only applies where the normal rules of interpretation would lead to a conflict with the ECHR (see 2.3.4).

(p. 156) 5.1 The decision to incorporate

Bingham, speaking extrajudicially at the time he was Master of the Rolls, stated:

I would suggest that the ability of English judges to protect human rights in this country and reconcile conflicting rights … is inhibited by the failure of successive governments over many years to incorporate into United Kingdom law the European Convention on Human Rights and Fundamental Freedoms.1

This was not a universally popular opinion but by the time the speech was given a significant debate had arisen as to the need to incorporate the ECHR into domestic law. There had been three attempts to incorporate the Convention into domestic law; once in 1987 by Sir Edward Gardiner QC, a conservative MP, and twice in 1994 and 1996 by Lord Lester of Herne Hill QC, a Liberal Democrat peer.2 The attempts had been resisted because it was thought that the rights were to be found already in domestic law through the common law. Since 1966 UK citizens had the right to petition the European Court of Human Rights (ECtHR) where they believed the state had breached their rights3 but the decision of the Court was theoretically unenforceable although successive governments had voluntarily acceded to judgments even when they disagreed with them.4 By the 1990s there was ‘an ever-lengthening list of occasions … [when] the Commission or the Court have found the United Kingdom to be in breach of its obligations’,5 which appeared to contradict the traditional opinion that the domestic courts were equally able to give force to the Convention rights.

A matter is only admissible before the ECtHR where domestic remedies have been exhausted (Article 35(1)) so where the ECtHR had ruled against the United Kingdom these matters had already been adjudicated on domestically without any such finding. This caused difficulties as the ECtHR is swamped with work, meaning the delay between petition and hearing can be significant.

The new Labour government argued that it would be more appropriate to allow the Convention to be litigated domestically and issued a White Paper (Rights Brought Home) setting out its proposals. The long title of the Act is: ‘an Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights’ and it does not therefore make reference to either incorporation or domestic authority. The Lord Chancellor argued that this phraseology was correct because the Convention was already being complied with and the Bill (now Act) was simply extending this compliance,6 and another commentator argues that the true position of the HRA can be described thus:

The Human Rights Act 1998 maintains the dualist distinction between the United Kingdom’s obligations in international law and the provisions of domestic law. The United Kingdom’s international obligations under the European Convention are not (p. 157) directly applicable in domestic law. Instead, the Human Rights Act 1998, s 1 and s 2, makes a list of ‘Convention rights’ … available as rights before the domestic courts.7

It is for this reason that the term ‘incorporation’ would be inappropriate not least because the Convention has not become a full part of the English Legal System. The HRA 1998, as will be seen, only directly applies in respect of actions against the state and not against private disputes although it may exist through ‘horizontal effect’8 because courts are classed as public bodies.9 Dwyer argues that the HRA 1998 is designed to establish this domestic framework and not to minimize the international obligations of the United Kingdom which can only be regulated by treaty. Fredman suggests that its summary could be:

[The Act] simply … empower[s]‌ United Kingdom judges to adjudicate in an area that was formerly the exclusive preserve of the European Court of Human Rights.10

Other commentators agree, noting that nothing in the HRA 1998 stops someone from petitioning the ECtHR save that, since the Court itself requires domestic options to have been exhausted, petitioners will have to try domestic proceedings first.11 It is quite possible that this could have a beneficial impact on the Court itself and Bingham, when arguing for a scheme similar to that created by the HRA 1998, suggested that a full reasoned examination at domestic level could help influence law at the ECtHR.12

5.2 The basic framework

It has been remarked that the HRA 1998 is quite a short Act and its key parts are in a small number of sections. Perhaps the most important is that of s 6 which places an obligation on public authorities to act in a way compatible with the ECHR, s 7 which proscribes how it can be used to obtain a remedy in the courts, and ss 2–4 which detail how the Act is to be applied and how legislation can be construed before the courts.

5.2.1 Duty to act compatibly

Arguably the cornerstone of the Act is s 6(1) of the Act which states:

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

This recognizes the issue about vertical effect discussed earlier, that at its heart the HRA 1998 is concerned with the relationship between the citizen and the state. It is for that reason that the Act (subject to the discussion on horizontal effect set out later) applies only to public authorities.

(p. 158) Of course this immediately begs the question who is a ‘public authority’ and the HRA 1998 itself is only partially helpful in this regard. Section 6(3) states:

‘public authority’ includes—

  1. (a) a court or tribunal, and

  2. (b) any person certain whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

Thus it is clear that courts and tribunals are expressly public authorities and that Parliament is exempt. Prior to 2009, when the Supreme Court was established, the highest court in the land was the House of Lords but s 6 expressly dealt with this apparent contradiction by stating that when it sat in its judicial capacity the House of Lords was a public authority.13

Why is Parliament exempt? The government and Parliament were obviously concerned that the HRA 1998 could be used to allow the courts to interfere with the parliamentary process. Traditionally it is said that the Bill of Rights ensures that the proceedings of Parliament are exempt from judicial scrutiny (the limits of this were discussed in R v Chaytor14 which concerned the criminal prosecution of Members of Parliament who fraudulently claimed expenses). If Parliament was considered to be a public authority then the courts would be able to hold Parliament to account for why it did something and, perhaps more importantly, why it did not do something, which would undermine the principle that Parliament is supreme within the United Kingdom. Whilst it will be seen that there is some question whether the courts are able to interfere with parliamentary supremacy through the interpretation clauses within ss 2–3 of the Act, classifying Parliament as a public body bound to act in a way compatible with the Convention would be an express limitation on parliamentary supremacy.

Interestingly the Act does introduce an element of parliamentary adherence to human rights in that s 19 HRA 1998 states that a minister, when introducing an Act to Parliament, must make a statement that it is compatible with the ECHR. Section 19(1)(b) expressly reserves the right of the government to make clear that it does not believe the legislative instrument is compatible with the ECHR but nevertheless wishes to continue with the legislation. Quite when such a statement would be made is open to question since it would arguably be electoral suicide to state that the government was introducing legislation that it believed was incompatible with its human rights obligations (as distinct from merely stating that it believes that the current interpretations are wrong) and it would be difficult to see how, for example, such legislation could be defended before the European Court of Human Rights.

Section 19 is, to an extent, largely cursory since there is no real enforcement mechanism. Since Parliament is exempt from being a public body as a result of s 6 there is little that a person can do if they believe that the minister is wrong when they make the claim under s 19, indeed the courts have noted that they would be unable to entertain any challenge without infringing the Bill of Rights.15

(p. 159) 5.2.1.1 Who is a public authority?

It will be remembered that s 6 provides only a partial definition. Whilst it expressly includes the courts and expressly excludes Parliament it leaves the status of other bodies vague. It will be remembered that the wording is that it must be a ‘person certain’ (which simply means a legal entity) ‘whose functions are functions of a public nature’; but what does this mean? Section 6(5) adds to the uncertainty by stating that a legal entity is not a public authority if ‘the nature of the Act is private’.

At the time of the passage of the Bill there was a belief that this language created two tiers of public bodies; those that are obviously public and those which are capable of being a public body but which would require further analysis. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank16 the House of Lords accepted that this duality of public bodies was correct and noted that their constitutional significance was less significant than what their functions are. A Parochial Church Council is a legal entity of a parish of the Church of England—an established (ie state) church—and yet the House of Lords held that it was not necessarily a public body for the purposes of the HRA 1998.

The first group of public bodies, which have now been labelled ‘core public authorities’, are the least problematic and are those that will be inherently a public authority. Classic examples of this would be the police, Fire and Rescue Service, and government departments (it will be remembered that whilst Parliament is exempt, the government is separate from Parliament and government departments are inherently public).

The second group, sometimes known as hybrid public authorities, are arguably the more complicated because they are only bound by the HRA 1998 when they exercise public functions and not when they exercise private functions. There are a wide range of bodies that could be considered to be a hybrid body. Perhaps the classic example would be that of a private company who runs a prison. Clearly private security firms are not ordinarily public bodies but when they are running a prison they are exercising a public function since the detention of prisoners lawfully sentenced to imprisonment (or a suspect remanded in custody) by a court is certainly a public function.

In Aston Cantlow the test of a ‘public function’ was to assess the status of what the entity was trying to do and, for example, to consider factors such as whether it was ‘in possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest, and [has] a statutory constitution’.17 In the context of that case the Parochial Church Council (PCC) was trying to exercise a ‘rectorial property’ charge on the lands of the respondent. This is a special type of property interest that could have meant that the owners of a farm were liable for the full cost of repairing the chancel of the local parish church (something that was commonplace centuries ago). The court considered that the essence of what the PCC was trying to do was to enforce a civil debt and therefore this was not a public matter and so in this instance the PCC was not acting as a public body and was therefore not bound by the HRA 1998 (which could have been relevant since arguably the enforcement of the civil charge may have been incompatible with Article 1 of the First Protocol to the ECHR which concerns property rights).

This test was refined by the House of Lords in YL v Birmingham City Council.18 The matter at dispute here was the costs and provision of residential care for the elderly. (p. 160) This was a statutory duty (National Assistance Act 1948) and the Council met this, in part, by contracting out some services to private providers. YL was an 84-year-old woman who suffered from Alzheimer’s disease. The relatives of YL were, it was alleged, disruptive to the private provider of the residential care and the provider sought to cancel the contract, meaning that YL would be evicted. YL (suing by means of representatives) sought to argue that this would be a breach of the ECHR (Article 8). The question was whether the care home, when cancelling the contract, was acting as a public body.

Applying Aston Cantlow it may seem that the answer was ‘yes’ because although termination of a contract is private, the essence of what they were trying to do was to no longer provide residential care for YL and, as this was a statutory responsibility, it would seem to be of a public nature. However, by a majority of 3:2 the House of Lords held that they were not a public authority. The reasoning of the majority was quite technical, with them drawing a distinction between the provision of a service and the statutory duty to make arrangements to provide accommodation. Thus the House believed that whilst the council was under a duty the care home provider was not exercising a public function—that function being making arrangements—but was instead exercising a private function through the provision of a contractual relationship. In terms of the narrow reading of this decision the government enacted legislation to statutorily overrule the decision in respect of making the provision of accommodation a public function19 but the reasoning of the case remains. The consequences of this are quite significant in that it is not unusual for public authorities to contract out some of the provision of services and the implications of YL are that this may mean that the person delivering the service is not a public body even if the provision of the service is a public function. That said, it will depend on the nature of the contract and what the relevant duties are.20

The narrow approach adopted by the House of Lords has not been welcomed and it is noticeable that the Parliamentary Joint Committee on Human Rights has questioned whether such a narrow approach is appropriate.21 That said, it would be difficult to reverse YL without amending the HRA 1998 itself, something that would be politically problematic particularly during the current Conservative government where the very existence of the HRA 1998 itself is subject to debate (see 5.3). It is more likely that the courts will consider the need to soften the approach of YL and consider the inherent nature of the contractual arrangement (something that appears evident from London and Quadrant Housing).

That said, the courts remain wedded to the principles of both Aston Cantlow and YL. In TH v Chapter of Worcester Cathedral and the Bishop of Worcester and Worcestershire County Council22 the High Court applied these decisions to a case involving a bell ringer of Worcester Cathedral. Safeguarding concerns had been raised involving TH and the Chapter23 decided to withdraw permission to ring the bells of the Cathedral. TH sought to challenge this, inter alia, on the grounds that it interfered with his rights under Article 8 ECHR.24 Coulson J held that neither the Chapter nor (p. 161) the Bishop sitting in his corporate capacity25 was a hybrid public authority. He notes that neither act on behalf of the public, exercised any governmental function, have any statutory power in respect of safeguarding, or were subsidized by public funds. Neither were democratically accountable26 nor is the UK accountable to the ECtHR for their actions.27

The decision is a useful read for students wishing a summary on how the courts should approach what is, or is not, a public authority for the purposes of the HRA 1998.

An interesting distinction between core and hybrid public authorities is whether they themselves can use the HRA 1998. According to Lord Nicholls in Aston Cantlow core public authorities will not be able to use the HRA 199828 whereas hybrid public authorities may be able to do so.29 The logic behind this distinction refers back to the vertical nature of the protection of human rights within the ECHR and the HRA 1998. It will be remembered that the purpose of the HRA 1998 is to facilitate the actions of a citizen calling the state to account for breaches of their human rights. As a core public authority is, in essence, an instrument of the state then it cannot, in essence, sue itself for breaches of human rights. A hybrid public authority, when acting in its private capacity, could bring an action because when it is acting in its private rather than public role it is not an instrument of the state but is instead a private legal entity that may seek to hold the state to account for its human rights obligations.

5.2.1.2 Horizontal effect

It has been seen that the HRA 1998 theoretically only applies to public bodies but on occasion there will be circumstances when the Act may be said to have horizontal effect, ie it would seem to apply even in circumstances where it involves no obvious public authority.

Example Horizontal effect

Amy is suing Mandy, her neighbour, for playing her music too loud and is asking the court to restrict the ability of Mandy to play loud noise. This would seem to be a classic private dispute, neither Amy nor Mandy are public bodies. The right to freely enjoy one’s private life is contained within Article 8 and being subject to unreasonable loud music would certainly constitute interference. The court is expressly a public body by virtue of s 6(3) and so Amy could argue that because Article 8 includes positive obligations the court must protect her Article 8 rights. Thus even though the dispute is between two private citizens, the HRA 1998 and ECHR can become engaged because the court should act in a compatible way.

Horizontal effect can be quite controversial since, in essence, it rests on the basis that the courts, as a public authority, could bring Convention rights into any matter. Elliott (p. 162) and Thomas note that the concept of horizontal effect, if it exists, is open to significant doubt as to its impact ranging from denying its very existence (vertical effect only) through to providing full horizontal effect through requiring all cases to be decided compatibly even if this means that the courts have to adopt a new cause of action because of a gap in domestic law

Phillipson makes an important point in this regard. He notes that some rights within the ECHR have no obvious impact on disputes between private parties (eg, Article 6) but that others will be of more importance (eg, Article 8). He argues that although all rights are probably capable of horizontal effect they do not in fact all have this effect.30 This is partly because the HRA 1998 was not intended to incorporate the ECHR but rather to give it ‘greater effect’ by permitting their use in the domestic courts. Whilst some matters will require the courts to act in a compatible way on other occasions it will not be necessary because domestic law suffices or human rights are not engaged. That said, this should only be done in a way that will not usurp the rights of Parliament who remain supreme. This could mean implementing horizontal effect where it is possible to do so either by interpreting legislation or developing the common law but not by inventing new laws or processes.

The leading case on the development of horizontal effect is Campbell v Mirror Group Newspapers Ltd31 This case involved a report in the Daily Mirror newspaper which had reported that Naomi Campbell, a well-known supermodel, was attending meetings of Narcotics Anonymous. The story included details of when the meetings were, what was said, and photographs of her leaving the meetings. Traditionally English law did not recognize a tort of privacy but Article 8 of the ECHR recognized the protection of, inter alia, respect for private life and so the question arose as to what the courts should do. The newspaper publishers could not be said to be a public body, either core or hybrid, and thus it became clear that this would be one of the more important tests of whether the HRA 1998 had horizontal effect. If the HRA 1998 did apply then the circumstances of the case would be interesting as there was a direct clash between fundamental human rights; private life on the one hand (Campbell) and the freedom of expression (newspaper) on the other.

In the event the House of Lords arguably sidestepped the issue by deciding that it was not necessary to expressly consider the applicability of the HRA 1998 due to the fact that an alternative cause of action, confidence, was recognized by English law. That said, the tort of confidence that was applied would, prior to Campbell, not have covered the circumstances of that case and so there was a development of that law. Why did the law develop? The House, particularly Lord Hoffman, believed that the HRA 1998 empowers the courts to develop the underlying common law in such a way as to include the values of human rights and thus whilst the ratio of Campbell does not tell us how the courts will interpret horizontal effect the reality of the case is that it is recognition that the courts will take account of human rights principles even in private cases where the rights arguments are important and real. To this extent it is perhaps notable that Article 8 is commonly considered to have a positive element to it—the state must not only ensure that it does not interfere with the right but also should seek to protect it—and this may make it easier for horizontal effect to be developed.

(p. 163) 5.2.1.3 Acting in a way incompatible

Section 6(1) talks about ‘acting’ incompatibly but s 6(6) makes clear that a failure to act is also actionable unless the failure is in respect of parliamentary material (s 6(a)–(b)). The latter provision was required because although s 6(3) exempts Parliament from the provisions of the Act, without s 6(a)–(b) it would have been possible to bring an action against the relevant government minister alleging that he should have brought legislation before Parliament or exercised authority delegated to him by Parliament.

The inclusion of omissions is important because, as will be seen, a number of Articles in the ECHR include positive obligations—ie a duty is imposed on the state to secure the Convention by not merely refraining from interfering with the right itself but also to provide assistance to ensure that the right is not interfered with by others.

The requirement in s 6(1) is that the public body must not act (or fail to act) in a way that is incompatible with the Convention. This simply means that it must act in accordance with the Convention and ensure, where relevant, that it respects a person’s rights and freedoms including facilitating this where a positive duty is imposed. The courts must decide whether an action is incompatible and it will be seen later that the HRA 1998 empowers the courts in the way that it interprets legislation and ECHR jurisprudence.

5.2.2 Litigating the Act

It has been noted that public authorities must act in a way compatible with the ECHR but how is the Act used before the courts? To answer this question it is necessary to consider who is allowed to bring an action and how this action is brought or defended.

5.2.2.1 Victim

In order for a person to bring an action under the HRA 1998 they must be considered a ‘victim’ (s 7(1) HRA 1998). Victim is then defined by s 7(7) as a person who is considered a victim for the purposes of Article 34 of the ECHR. Article 34, however, does not provide much more clarity, simply stating: ‘[t]‌he court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation’. It is interesting that the HRA 1998 should link to Article 34 since it has been said that Article 34 itself is an autonomous concept that the ECtHR considers independently of any domestic law considerations.

The key consideration under Article 34 is that a person must be directly or indirectly affected by the issue they are complaining of. This can potentially be quite wide. For example, in Open Door and Dublin Well Women v Ireland,32 a case that concerned the provision of advice in respect of abortions, the ECtHR appeared to accept that any woman of child-bearing age was potentially a victim.33 However, what is clear is that there must be some tangible link to the issue and where there is the mere potential that the applicant could be a victim then there is a requirement to produce reasonable and convincing evidence of the potential harm, with mere conjecture being unacceptable.34 This makes the position of campaign groups more difficult since it has been noted that ‘organisations will not be able to claim to be a victim of measures (p. 164) which affect the rights of their members’35 although of course this restriction can be circumvented by having one of their members bring the action.

It is clear that the HRA 1998 test is more restrictive than the test of standing that ordinarily applies to, for example, judicial review which is not based on being a victim but only being ‘sufficiently interested’.36 Potentially this can cause difficulties where an action is alleging either breach of domestic law or human rights although it is likely that careful drafting can ensure that the issues are appropriately apportioned, even if it is through relying on the development of common law rather than human rights itself.

It is not clear why the government sought to link the status of victims with Article 34 as no clear rationale was put forward. Some believe, however, that the issue is really something of a distraction since if a victim cannot be found then it probably suggests that the issue is completely hypothetical and the courts should not be troubled by it.37 Certainly this suggestion may account for why the rule was introduced since at the time of its introduction there was concern in some quarters that the courts would be ‘clogged up’ with challenges under the HRA 1998, including vexatious ones. In fact, this did not materialize, a point that was made by Lord Irvine, the then Lord Chancellor.38

Case Box R (Al-Skeini) v Ministry of Defence

It may seem that a victim for the purposes of the HRA 1998 would be a UK citizen or resident but in R (Al-Skeini) v Ministry of Defence39 the House of Lords held that this was not the case. This was a case that arose as a result of military action in Iraq. Several relatives of those who were killed by UK troops petitioned the English courts under the HRA 1998. The House of Lords held that whilst ordinarily the actions of soldiers in places of conflict would be outside of the jurisdiction of the English courts, this was not always the case. One death occurred while the person was within the custody and control of UK forces on a British Army base. The House of Lords held that in these circumstances it could be said that the HRA 1998 should be applied because the prisoner was within the jurisdiction of a UK public body (the military). The decision was extremely controversial, and somewhat misunderstood, because there was a belief by some that human rights have no place on a battlefield. However, this perhaps misses the point that the House of Lords ruled on that point and declared many of the applications inadmissible. What made this case justiciable was the fact that the claimant was brought onto a sovereign base, into the care and custody of British troops. It does show that a ‘victim’ of a public authority can, in certain circumstances, be someone who resides abroad.

5.2.2.2 Sword

Assuming that a person can be considered to be a victim then they can litigate the Act. Section 7 permits action to be used in two ways; as a sword,40 ie by using the Act to (p. 165) initiate civil proceedings against a public body, or as a shield,41 ie by using the Act to defend action brought against it by the state (be that civil or criminal).

Of the two forms of litigation the use of the sword is perhaps more usual, not least because it includes the possibility of bringing action in anticipation of a breach (s 7(1) expressly makes reference to the fact that a public authority proposes to act in an unlawful way).

Example Anticipated action

Robert is organizing a protest march against capitalism. The police do not wish the route of the march to proceed through the city centre. They plan to use their powers to order the route to be re-routed through outlying areas.

Prima facie this is a breach of Articles 10 (freedom of expression) and 11 (freedom of assembly) and Robert, as a direct victim, could bring an action against the police before the march takes place alleging the actions of the police, a public authority, will interfere with his rights.

The HRA 1998 does not itself create any new form of litigation but instead states it can be used as a basis of action under existing procedures. The HRA 1998 expressly refers to judicial review42 and it is likely that this will be one of the more usual forms of litigating the Act. The issue of judicial review is discussed in Chapter 17 but it could also be for other forms of action, most notably tort.

Ordinarily actions under the HRA 1998 must be instigated within one year of the alleged breach occurring43 although the courts have discretion to vary this where they believe it is fair to do so.

5.2.2.3 Shield

The second way that the HRA 1998 can be litigated is as a shield, ie by raising human rights issues as a defence to an action brought against an individual. This could cover a variety of different types of situations. For example, in the civil sphere this may relate to a person raising human rights issues where a local authority seeks to bring an action for breach of planning rules. There is no limitation on the use of s 7 as a shield and it could also be used in criminal trials where a person may wish to suggest that a prosecution amounts to a breach of his human rights. The most likely argument in such circumstances would be to raise procedural issues and allege that they have breached Article 6 (right to fair trial) but may also include arguments that some laws are too vague and thus amount to a breach of Article 744 or that a sentence imposed on him is greater than that which was prescribed at the time he committed an offence.45

(p. 166) 5.2.3 Interpreting legislation and the Convention

The HRA 1998 places the compatibility of UK laws with the ECHR at the heart of the legislation. It provides specific powers to the courts in how it construes English laws and also how it considers the ECHR when considering the compatibility or otherwise of domestic law. Arguably these are the most important provisions within the Act since, as will be seen, it provides the courts with the ability to go beyond that which ordinary principles of statutory interpretation may require of them.

There are two sections that deal with interpretation in the HRA 1998. Section 2 relates to how the domestic courts should interpret the ECHR itself and s 3 relates to how the courts should interpret domestic legislation so as to make it compliant with the ECHR. There is an obvious interaction between the two sections but of the two s 3 has proven to be the more important.

5.2.3.1 Interpreting legislation

Section 3 of the HRA 1998, it will be remembered from Chapter 2, allows the courts to interpret legislation in a way that is compatible with the ECHR (see 2.3.4). It will be remembered that there are limits to what the courts can do and it does not provide any power to ‘strike down’ legislation but it certainly allows the courts to go much further than they could under the traditional rules of statutory interpretation.

5.2.3.2 Interpreting the Convention

It has been seen that at the heart of the power under s 3 is the fact that the domestic courts must consider whether they believe legislation is compatible with the ECHR. The HRA 1998 prescribes how the courts should do this in terms of them considering not only the ECHR itself but also the jurisprudence of the ECtHR. This is necessary because, as it will be remembered from Chapter 4, international law does not easily divide into ‘primary’ and ‘secondary’ sources and so the decisions of the ECtHR are extremely important in ascertaining what the Convention means, not least because the ECHR has been described as a ‘living instrument’, ie subject to evolution.46

Section 2(1) of the HRA 1998 states that a court ‘must take account of’, inter alia, a judgment of the ECtHR or the European Commission on Human Rights. The wording is interesting because although it is mandatory (‘must’) the decision is not to bind the courts but merely to ‘take account of’ the decisions. It has been noted that the effect of this is that the statute does not instruct courts on how the authorities should be treated by the courts, nor what weight should be given to them.47

The general approach by the courts has been to operate on the basis that whilst they are not bound by the ECtHR the courts will mirror the decisions of the ECtHR (ie follow them) if there is clear and consistent authority.48 The justification for this approach differs but in R (Anderson) v Secretary of State for the Home Department49 Lord Bingham stated that ‘the House will not without good reason depart from the principles laid down in a carefully considered judgment of the court sitting as a Grand (p. 167) Chamber’.50 This perhaps recognizes that the ECtHR has had the best opportunity of considering the issues before the Court, including the fact that some aspects of the ECHR are considered to have an autonomous meaning, ie one that is considered purely in the context of the ECHR and not by reference to national definitions.51 However, some have been critical of this rule as it arguably means that decisions of the ECtHR are treated in the same way the Supreme Court treats its own decisions, ie they will ordinarily follow them but exceptionally may depart from them.52 Certainly this would be beyond that which was ever contemplated by Parliament when the Bill was being passed (where, for example, the government specifically rejected an amendment that would have made the UK courts bound by the ECtHR53) but perhaps this is reading too much into what the mirror principle means and it is difficult to understand what else the courts can do in the face of clear rulings from the ECtHR, as to do otherwise would arguably mean the UK breaches international law.

Whilst the courts will ordinarily follow Strasbourg they do reserve the right not to do so and one particular exception is where they believe that the ECtHR has not fully understood the subtleties of domestic law. The most notable example of this was R v Horncastle.54 This was an evidence case before the Supreme Court. The appellant had been convicted of causing grievous bodily harm with intent55 and whilst the victim had given a statement to the police, the victim had (for unconnected reasons) died before the matter came to trial. The statement was read out in court and, whilst there was other evidence, the Court of Appeal (Criminal Division) had ruled that it was ‘to a decisive degree’ the basis upon which the appellant had been convicted.

The appellant sought to argue that the admission of the statement breached Article 6 of the ECHR as he was unable to cross-examine the victim: the jury therefore only heard one side of the story. Reliance was placed on Al-Khawaja and Tahery v United Kingdom56 where the ECtHR had held that where a statement of a person not able to be cross-examined was ‘the sole, or at least, the decisive basis’ for a conviction then Article 6 was breached.

The Supreme Court refused to follow the decision of Al-Khawaja, in part because Article 43 of the ECHR allows a party to a decision to petition that the matter is heard by the Grand Chamber of the ECtHR (discussed in Chapter 4). This had happened in this case although the matter had not, at that time, been heard. The Supreme Court held that whilst s 2(1) meant that ordinarily a decision would be followed, the Supreme Court reserved the right to rule that certain decisions of the ECtHR did not sufficiently appreciate or accommodate particular aspects of the UK domestic process. In such circumstances it could refuse to follow the Strasbourg court.

Some scholars place emphasis on the fact that because it is possible to disagree with the ECtHR this means that a ‘dialogue’ exists between the domestic courts and Strasbourg.57 The genesis of this idea can be traced back to the consultation paper proposing the HRA 1998 with it expressly stating that ‘judges will be able to contribute (p. 168) to this dynamic and evolving interpretation of the Convention’. However, the logic of this contribution is somewhat dubious, not least because there is not a formal system of reviewing cases to the court (cf the position with the Court of Justice of the EU). Where the individual loses before the domestic courts he can petition the ECtHR which, if it takes the case, can review the logic of the domestic courts’ approach to the Convention, but where the individual succeeds and it is the public body that disagrees with the view of the court then there is no recourse to the ECtHR. Given the inherent delays of the Court (discussed in Chapter 4) it must also be questioned whether there is any true discussion since by the time the matter is re-litigated it is quite possible the position has moved on in both domestic and international law.

Some commentators have noted that a difficulty of not generally following the rulings of Strasbourg would be that it could make the law less certain. The rationale behind such a suggestion is that not only would lawyers, advising their clients, have to understand how the ECtHR interprets particular sections of the Convention they would also have to identify the separate domestic interpretation and attempt to reconcile the two.58 If true, this would certainly seem to be contrary to the general purpose of the law in England and Wales. It will be remembered from Chapter 3 that stare decisis was initiated, in part, because there was a belief that certainty of the law was desirable. It would be regrettable if an interpretation of s 2 was to make the law uncertain.

Precedent V Section 2

It has been noted that s 2 requires the courts to take account of ECHR issues and there has been some discussion as to what this means in terms of precedent. How has this resolved itself in practice? In Kay v Lambeth London Borough Council59 the House of Lords stated that the rules of precedent should be followed and that where a binding precedent is incompatible with a decision of the ECtHR the matter should be sent to appeal, even invoking the ‘leap-frog’ procedure that allows decisions of the High Court to be appealed to the Supreme Court where a matter is of public importance.

An example of this in practice can be found in R (on behalf of Purdy) v DPP60 where the Divisional Court was asked to rule on an assisted suicide issue. The claimant suggested that the DPP should have to publish a specific policy in respect of when he would prosecute people for assisted suicide. This raised a similar (but sufficiently distinct) point from the ‘Diane Pretty’ litigation. An issue arose as to whether Article 8(1) was engaged. The House of Lords had held in the Pretty case that it was not61 but Diane Pretty had then taken the matter to the ECtHR who held that it had invoked Article 8 (although deciding it was a justifiable interference).62

The Divisional Court had to decide whether it was bound by the House of Lords decision in Pretty or whether it could follow the ECtHR (which s 2 would seem to imply). They held that the ruling in Kay was clear and that they were bound by the House of Lords and that only the House (now Supreme Court) could alter this precedent.63 The decision in R v Horncastle64 would (p. 169) lend support to this argument as the Supreme Court was, in that case, expressly stating that it had the right to depart from Strasbourg and that other courts must follow the ruling of the Supreme Court.

Margin of appreciation

Whilst the ECtHR will sometimes seek to find a uniform approach to the ECHR it will sometimes recognize that it is not best placed to decide how some matters should be applied and will leave this adjudication to the signatory state. When the ECtHR decides that the state is best placed to decide how to implement a particular issue this is known as the doctrine of the margin of appreciation.65 The doctrine applies because the essence of the Convention is that the signatory states are responsible for the protection of human rights and the Court has a supervisory role, meaning that it checks that states are adhering to their obligations, taking account of the individual circumstances of countries.66

The doctrine was first identified in Handyside v United Kingdom67 which concerned an obscenity trial. The ECtHR held that deciding how to protect morals was primarily a matter for signatory states as each state has different moral standards reflecting the different make-up of society and liberal tendencies. That said, the Court was also clear that any margin of appreciation was subject to its scrutiny, ie it reserves the right to consider whether a state has exercised its discretion in an improper way.

Does the doctrine apply to the HRA 1998? Lord Hope in R v DPP, ex p Kebilene68 thought it did not as it was a matter of international law whereby an international court showed deference to a state in terms of its individual society69 but Lord Irvine, the then Lord Chancellor, has argued that the courts have adopted their own version of this test.70 He argues that this version is where the courts defer to Parliament and the executive over some issues surrounding society on the basis that certain areas are political rather than purely legal.71 It has been said that this deference began with judicial review72 and has become an established part of HRA 1998 actions with the concept being that the courts will defer to the executive where there is a ‘fair balance’ between the interests of society as a whole and the individual’s human rights.73 However, Leigh argues that it should be restricted solely to qualified rights (ie Articles 8–11) and not to absolute rights, for example Articles 2 and 3.

Others disagree with this proposition and suggest that there is no reason why deference should not occur in absolute rights too.74 This argument is based on the premise that there is no such thing as a ‘qualified’ right and that Articles 8–11 are erroneously so (p. 170) called because, in essence, the first part of each Article provides only a prima facie right or freedom and it is only when the derogation (the second paragraph of each Article) is applied that it can be decided whether the right applies or not. Accordingly, Atrill argues that all rights are unqualified and that there is no difference between the Articles themselves. Certainly it is true to say that the rights and freedoms traditionally labelled as qualified are not subservient to the absolute rights, with the ECtHR itself arguing that Article 10 (freedom of expression) is an essential foundation for democracy75 which suggests that it recognizes this as one of the more important rights. However, this would also be slightly misleading in that the ECtHR itself has adopted a strict interpretation to Articles 2 and 3 with any margin of appreciation being highly restricted. That said, it is clear that the ECtHR has applied the margin to Articles 5 and 6, which whilst not absolute are not ordinarily classified as qualified,76 and so there is no reason why any domestic application should be restricted to Articles 8–11.

Atrill argues that the domestic equivalent to a margin of appreciation—judicial deference—is required for all rights and that not doing so would restrict the development of rights.77 Lord Irvine appears to believe the correct approach is somewhere between these two polarized opinions. He recognizes that there is a need for the courts to hold the executive and legislature to account and that proportionality (see ‘Necessity and proportionality’) is a powerful tool in checking the validity and extent of any deference78 but he also argues that there are some situations where the courts need to defer to the executive and legislature, as bodies with democratic authority.

Necessity and proportionality

Central to many of the Convention rights, but in particular the qualified rights under Articles 8–11, are the concepts of necessity and proportionality. Arguably this is a little simplistic as proportionality is referred to in many Convention Articles, particularly Article 6 (right to a fair trial), and necessity is also a flexible concept. Some argue that necessity is part of proportionality as at its simplest it can be argued that necessity means that just because a public body has the right to do something does not mean that it should. A public authority should only interfere with someone’s rights when it has to, not just when it wants to: in other words it is when it has to—not when it would be merely convenient to do so.

In Soering v United Kingdom79 the ECtHR explained the principle of proportionality:

[I]‌nherent in the whole of the Convention is a search for a fair balance between the demands of the general public interest of the community and the requirements of the protection of the individual’s fundamental rights.80

Thus proportionality is remembering that although a person has a right, this right must be kept in the context of society’s rights and should not create a position whereby it causes undue problems for society. In respect of the qualified rights (see 5.4.1.1) proportionality will often mean that the extent of a right should be limited so as to ensure that the public are not unduly constrained. Arguably proportionality (p. 171) has two dimensions to it. The first is whether a right should be interfered with (and this will incorporate the idea of necessity) and the second is how far the interference should go. It is, in particular, this latter dimension that is particularly relevant to the qualified rights.

Example Proportionality

In Northern Ireland there is a ‘Parades Commission’ that seeks to adjudicate on disputes arising from marches that occur each year in the Province. The marches are normally undertaken by Protestant organizations (eg the Orange Order) and commemorate historic battles. The battles were part of a series of campaigns between Protestant and Catholic monarchs that sought control of Europe, the United Kingdom, and Ireland. Many marches throughout the island of Ireland take place peacefully but the march in Belfast has often been controversial and has, on a number of occasions, led to violence between Republican and Loyalist factions hiding under the cloak of Protestant and Catholic allegiances.

Articles 10 and 11 provide the right to freedom of expression and freedom of assembly and, taken together, could provide a right to march. However, both are qualified rights and the state (through the Parades Commission in this instance) can interfere with the rights so long as it is for a legitimate aim and proportionate.

In recent years the Parades Commission has banned the march from passing through Catholic areas of Belfast City and instead re-routed it through Protestant areas. Although this is highly controversial to the Orange Order (who claim the right to walk down the Queen’s Highway) the decision is arguably proportionate as it seeks a balance between the right of people to march (and indeed the parades and marches do occur) but also between the wider members of certain sections of society who consider the marches offensive. Finding the balance is not easy and it is this tension which the ECtHR was considering (albeit in a different context) in Soering and its later pronouncements on proportionality.

When considering whether a public body acted appropriately, the concept of proportionality was alien to the English courts. The traditional view taken was that the courts would only interfere when a decision was illegal, procedurally improper, or irrational (see, for example, Associated Provincial Picture Houses Ltd v Wednesbury Corporation81). However, proportionality arguably differs considerably from these traditional grounds as the latter examined whether a decision was wrong and yet proportionality is suggesting that there are competing rights. In R (on behalf of Daly) v Secretary of State for the Home Department82 Lord Steyn summarized what he believed were three differences:

First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test … is not necessarily appropriate to the protection of human rights.83

(p. 172) His Lordship certainly believed that the intensity of the review of a decision-making process under proportionality is greater than in traditional reviews presumably because of the balance required: ie the courts must look at the rights of both the claimant and society in deciding where the balance is to be struck and not just at whether the decision was wrong. However, it should be remembered that this only applied where a Convention right is in issue; if the matter is purely one of domestic law then the traditional grounds of review continue to be used.

5.2.4 Remedies

It will be remembered that s 7 allows a person to use the HRA 1998 as either a ‘sword’ or a ‘shield’ in terms of litigation. Assuming that the courts, when interpreting legislation, conclude that the victim has had their rights infringed (or, if it is anticipatory action, will have their rights infringed) what remedies are available?

To some degree the simple answer is the reference within s 8(1) which states:

[A court] may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

However, this disguises some of the intricacies involved in the discussion of remedies and a number of issues need to be discussed.

5.2.4.1 Article 13: The missing Article

Article 13 of the Convention provides that everyone whose rights are breached under the Convention has the right to an effective remedy. However, Article 13 has, controversially, not been included within the HRA 1998. In part, this is because the government argued that the HRA 1998 itself was the realization of Article 13 and that, whereas before a remedy could only be obtained by petitioning the ECtHR itself, the HRA 1998 allows for domestic remedies. Given that the HRA 1998 does not create any new procedures it was also thought that a remedy will always be granted but this misses the point that damages and relief are often discretionary.

Where the omission of Article 13 may have some relevance is in respect of delayed trials. It will be seen that Article 6 provides, inter alia, that a person will be brought to trial quickly. The ECtHR has held that remedying a breach for Article 6 in these circumstances through the provision of compensation is unlikely to suffice by itself and that it would be more appropriate to provide a solution, ie expediting the trial. Whilst the criminal justice system has suffered considerable delays in recent years it is perhaps questionable whether the delays will be sufficient to lead to a breach of Article 6, as longer periods than are usual in the UK have been upheld by the ECtHR. That said, if such a breach were to be found then in the absence of Article 13 it could be questioned whether the court has sufficient powers to act. It is submitted that the generic wording of s 8 means that a remedy could be granted since the Criminal Procedure Rules provide for sanctions to quicken trials and also, where appropriate, the ability to stay proceedings for lack of care. Thus the absence of Article 13 is unlikely to prove too problematic.

5.2.4.2 Declarations of incompatibility

Some courts, most notably the Supreme Court of the United States of America, have the power to ‘strike down’ legislation, ie declare that it is no longer in force. As noted already the courts in England and Wales do not have this power and the government (p. 173) was very careful, when introducing the HRA 1998, to ensure that this power was not given to the courts.

The previous section identified that the courts have express power to interpret legislation, so far as is possible, in such a way as to ensure compatibility. However, it was also seen that there are limits to the power of the courts under s 3 and sometimes a court will face the conclusion that legislation is incompatible and cannot be interpreted in such a way as to make it compatible. In those circumstances the court is able to make a declaration of incompatibility under s 4 HRA 1998.

One of the first points to note about declarations of incompatibility is that it is discretionary. The wording of s 4(2) is very clear that the court may make a declaration and thus even if it believes that legislation is incompatible with the ECHR it could decide that it is not necessary to make a declaration and could instead simply make a ruling that the legislation is incompatible and not, for example, trigger some of the ancillary issues related to a s 4 declaration. It will be seen that the effects of a s 4 declaration can be quite significant and it is for this reason that only certain powers have the right to make a declaration of incompatibility under s 4. Whilst any court can exercise the interpretation clause within s 3, of the English courts only the Supreme Court, Court of Appeal, and High Court can make a declaration.84 The exception to this is the Court of Protection, which is a relatively new statutory court, but this court may only make a declaration where it is being presided over by the President of the Family Division (who is also the President of the Court of Protection), Chancellor of the High Court (who is its Vice-President), or a puisne judge.85

A declaration of incompatibility is an unusual remedy in that it does not have any impact on the matter before the court. This is clear from s 4(6) which states:

A declaration of [incompatibility]—

  1. (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and

  2. (b) is not binding on the parties to the proceedings in which it is made.

The effect of this section is twofold. The first is that when deciding the matter in front of it, the court has to ignore the fact that the law is incompatible and proceed on the basis that the law is valid. It is for this reason that the courts have sometimes suggested that a declaration of incompatibility should be a remedy of last resort, with strong preference being given to the use of their interpretative powers under s 3.86 This would be preferred because, where interpretation is permissible, it would at least mean that the courts could solve the issue that led to the breach of human rights. The second effect of course is that subsequent cases must also be dealt with by applying the law as is and not take account of the fact that there is a recognized breach of human rights.

Of course where the court is recognizing a breach of human rights but is not providing a remedy this would appear to be a breach of Article 13 and this is perhaps an additional reason why the government wished to exclude Article 13 from the HRA 1998. It does, however, leave the government in a difficult position since if the claimant takes the matter to the ECtHR then it is highly likely that it would also find a breach (p. 174) (although they are not bound to follow the domestic court) and, having ruled that there is a breach, could award damages as a remedy.

What is the point of a s 4 declaration if it does not affect the issue that is being litigated? The answer lies in the fact that it empowers the government, if it so wishes, to rectify the breach without the need to introduce primary legislation. Section 10 empowers, but does not require, the government to amend primary legislation to make it compatible with the ECHR through the use of secondary legislation, a so-called ‘Henry VIII’ order. The power can only be exercised if a court has made a declaration under s 4 and there has been no appeal, the time for an appeal has lapsed, or all parties to the dispute state in writing they will not appeal.87 If the test is met and the minister believes that there are ‘compelling reasons’ for amending the legislation then the amendment may be by order. The principal advantage of this is speed. It will be remembered from Chapter 2 that primary legislation can take a considerable period of time to progress through Parliament, especially where it is controversial or where there are pressures on parliamentary time. A statutory instrument takes considerably less time and thus the legislation and, presumably the incompatibility, can be undertaken quickly. Whilst legislation is not ordinarily retrospective it does mean that any future challenges would be dealt with under (what would be hoped to be compatible) legislation rather than the text that has been ruled incompatible.

Remedial Corrections

In R (on the application of H) v Mental Health Review Tribunal (North and East London Region)88 the Court of Appeal made the first declaration of incompatibility when it held that s 73 Mental Health Act 1983 was incompatible with Article 5 (right to liberty) of the ECHR. Section 73 stated that where a person had been detained under the Mental Health Act then the burden of showing that the detention was no longer justified was on the patient rather than on the health authority. The government sought to use its powers under s 8 and the Mental Health Act 1983 (Remedial) Order 200189 was made which amended s 73 to place the burden on the authority.

Of course whilst secondary legislation is quicker it does mean that there is less parliamentary scrutiny which potentially means the government could alter primary legislation without the full consent of the Houses of Parliament (although from Chapter 3 it will be remembered that there are ways of objecting to secondary legislation). It appears that remedial orders are relatively unusual and that it is more common for Parliament to pass primary legislation to amend the offending legislation, presumably in part because of the transparency concerns noted earlier.

5.2.4.3 Remedies against judicial acts

Where the allegation is that a court (which is expressly a public authority by virtue of s 6(3)(a)) has acted contrary to the Convention then the only remedy that lies is a right of appeal or judicial review.90 This is to ensure that people do not re-litigate (p. 175) their disputes by suing individual judges when they believe that the judgment of the court has infringed their Convention rights. This is a necessary step and has led to little dispute.

Judicial immunity (see 9.2.4) is also expressly contained in the Act when it states that damages may not be awarded when a judicial act has been undertaken in good faith.91 The only exception to this rule is in respect of Article 5 of the ECHR (right to liberty). Article 5(5) expressly states that where a person has been detained unlawfully by the state they have an automatic right to compensation. Section 9(3) HRA 1998 makes clear, therefore, that the rule against damages does not extend to breaches of Article 5 although the government (via the appropriate minister) must be made a party to the proceedings when any court believes that it will be necessary to award damages under that section.92

5.2.4.4 Civil remedies

Assuming that a declaration of incompatibility is not required, what remedies are available when a court adjudicates? Section 8 does not limit the type of remedies available in civil matters and accordingly the full range of remedies are available to the court (discussed more extensively in Chapter 18). The actual remedy will depend on what action was being brought. Where, for example, it was anticipatory action then it is likely that the remedy sought will be an injunction preventing the breach from occurring. Where the action is because there is a belief that human rights already have been breached then it is likely that damages may be sought. That said, it is likely that in some instances a simple declaration would suffice—ie a statement by the judge that rights have been, or will be, infringed. Let us return to our earlier example of Robert (see ‘Sword’). It will be remembered that the police wished to re-route his march. It is quite possible that Robert may seek an order quashing the decision of the police to re-route the march but it is also possible that a simple declaration by the judge that the actions would be illegal would suffice, with the police agreeing to respect the ruling.

Damages are perhaps the best-known form of civil remedy and the HRA 1998 does place some limitations on how these operate. The first rule is that only a court or tribunal that has the power to order damages may do so.93 That may seem obvious, but not every court has the right to make damages, the most notable one being the Crown Court. The effect of s 8(2) would be to prevent the Crown Court, when making a finding that a person’s human rights were infringed, ordering compensation (although the defendant could then initiate action in the civil courts which may be difficult to rebut).

The second issue in respect of damages is that the court can only award them if, after considering the other relief that it may order, it is satisfied that it is ‘necessary to provide just satisfaction’ in the case.94 When deciding whether to award damages and, if so their quantum, the court must ‘take into account the principles applied by the [ECtHR] in relation to the award of compensation under Article 41’.95 This is an important principle as the ECtHR has adopted particular approaches to the granting of damages, including the fact that sometimes it will decline to provide any compensation beyond legal costs. This is because it sometimes believes, particularly in procedural (p. 176) matters, that the mere finding that a person’s rights have been infringed will amount to ‘just satisfaction’. The ECtHR has also, on occasion, refused to grant compensation on the grounds of public policy although it does so only rarely, but this is something that the domestic courts should take into account.

Example Denying compensation

A significant case where the ECtHR refused to order compensation was McCann v United Kingdom.96 This was one of the most controversial cases before the ECtHR. Three terrorists were shot dead in Gibraltar by members of the Special Air Service. The soldiers believed that the suspects were carrying a remote detonator that would allow them to set off a large explosive device. In fact, there was neither a detonator nor a bomb, as the suspects were on a reconnaissance exercise. In a controversial judgment the ECtHR held that the actual shootings did not breach Article 2 but the circumstances leading up to it did breach Article 2. The Court (in a 10:9 majority decision) believed that there was insufficient planning to identify whether it was possible to arrest the suspects, ie in essence suggesting the plan was always to shoot dead the suspects. Whilst the ECtHR found a breach of Article 2 it refused to award compensation to the relatives of the dead, in part because it was acknowledged that the three were intending to plant a bomb that was likely to cause death, injury, and significant damage.

Where damages are linked to financial loss the ECtHR will require proof that ‘there is a causal link between the violation and any financial loss alleged’97 and mere speculation will not suffice. As an example of circumstances when they will not find this link, it has been noted that loss of earnings from being imprisoned will not be compensated where a person succeeds in showing a breach of Article 6, the right to a fair trial.98 Presumably the logic behind this is that it is not the unfair trial that caused the person to be imprisoned, it was the conduct that led to him being charged with an offence in the first place that was the cause (on that basis, where a person is imprisoned for a retrospective law that contravenes Article 7 of the ECHR it is possible that compensation would be awarded).

5.2.4.5 Remedies in criminal cases

It was noted earlier (5.2.2.3) that it is possible to use the HRA 1998 in criminal proceedings. Where a person is charged with a criminal offence what is the remedy for a breach of a Convention right? The HRA 1998 makes clear that it is possible to rely on the Convention as a defence and accordingly it may be possible, in extreme situations, to argue that a defendant should not be convicted as a result of the breach of the Convention but these will be relatively rare examples. More likely is that a serious breach of the Convention could lead to a successful argument that prosecuting the defendant would amount to an abuse of process and, accordingly, the prosecution should be halted. The House of Lords accepted that this could be the case, albeit in obiter and per curiam in the conjoined cases of Attorney-General’s Reference (No 3 (p. 177) of 2000); R v Looseley99 where they accepted that the abuse-of-process doctrine was compatible with the ECHR. However, in a later decision the House stated quite clearly that it would be exceptional for breaches to halt criminal proceedings.

In Attorney-General’s Reference (No 2 of 2001)100 the House of Lords was called upon to consider the appropriate remedy in situations where there had been excessive delay in prosecuting defendants and bringing them before the courts for trial. Article 6(1) states a defendant has the right to a trial ‘within a reasonable time’ and the judge at first instance had stayed the trial arguing this was the appropriate remedy. The Attorney-General referred the matter to the appellate courts101 and it eventually reached the House of Lords.

The House agreed that undue delay could breach Article 6(1) and argued that the ‘clock’ will normally start when a person is charged or summonsed before the court although this was not always the case as excessive delay between a formal interview and a charge may also be relevant. However, the House was dismissive of the idea that the only ‘effective remedy’ for undue delay is a stay of proceedings. Lord Bingham argued that remedies such as an acceleration of the timetable, the granting of bail, or even financial compensation might suffice.102 His Lordship suggested that a stay should only be granted if the delay was so long that it would no longer be possible to guarantee a fair trial. The rationale behind this is that of proportionality: society has the right to expect protection from those who commit crimes and that where it is possible to do so fairly then a trial should continue. Lord Nicholls went further and argued that a stay would not be an effective remedy because it was against the wrong breach. His Lordship argued that normally the breach is not holding a trial after an excessive delay but rather not holding a trial in sufficient time. If, as the House believed, it is the latter then the trial is not unfair even if there has been a breach of Article 6. If the trial is not unfair then it cannot be an effective remedy to stay the trial. The House was leaving open the possibility that there could be circumstances in which holding a trial after excessive delay would be unfair (but that it is likely to be as a result of other factors, eg witness availability) and in those circumstances the effective remedy may be the stay of a trial.

It would seem therefore that the opportunities to use the HRA 1998 as a defence in criminal trials are now somewhat restricted although it has been suggested that this is not yet settled law and that the ECtHR itself has been taking a stricter line on procedural defects in trials, especially improper delay.103 Ashworth appears to be arguing, therefore, that the ECtHR may suggest that delay may by itself lead to an unfair trial which would, following Lord Nicholls’ argument, lead to the only effective remedy being a stay. It is notable that in the Attorney-General’s Reference Lord Hope gave a strong dissenting judgment where he argued that it is not possible to detach the timing of the trial from the fairness of its execution104 and that any delay that takes place after undue delay is necessarily a breach of the right to a fair trial. Lord Hope was alone in his (p. 178) views but if Ashworth is correct his analysis may find favour in the ECtHR. Given that Article 13 is not within the HRA 1998 it is conceivable to see that a person convicted after undue delay but within Lord Bingham’s reasoning could petition the ECtHR alleging a breach of Article 6 and a breach of Article 13. The ECtHR has no power to quash convictions but it could, presumably, state whether it thought that financial compensation or the granting of bail is an ‘effective remedy’ for the purposes of Article 6. Whether a domestic court would then follow that decision is perhaps more moot.

Question for Reflection

What do you think the remedy should be where a person on trial claims that his human rights have been breached? Does it matter what right is claimed to be breached (eg substantive (such as a complaint that he was beaten in custody) or procedural (eg that he has been subject to unfair questioning))? A difficulty with human rights arguments is that just because a person’s rights have been infringed does not mean that he did not commit the crime. Can it ever be justified to quash a conviction, or order a person’s acquittal, because a suspect’s human rights have been infringed?

5.3 The future of the Human Rights Act 1998

The HRA 1998 came into full force in 2000 and thus has been in effect for over a decade. Yet since the decision to introduce the legislation was first announced in 1997 it has been one of the most controversial pieces of legislation. The Conservative party have been very clear in their dislike of the legislation and much of the media, particularly those that are considered to be to the right of the political spectrum, share the desire to repeal the Act.

The dislike of the Act is nothing new and, speaking sometime after the commencement of the Act, Lord Irvine of Lairg, the then Lord Chancellor, stated:

One commentator asked recently why the Human Rights Act is still disliked. It is a good question.105

If anything, the Act has become more controversial since that statement was made. The press, particularly the right-wing press, have a dislike of the Act which, in some publications, borders on hatred. Like health and safety legislation the press gleefully report stories of ‘human rights violations’ which generally are false, misinformation, or the product of a non-lawyer suggesting something that the legislation never contemplated. Health and Safety has been the bogeyman for several years (with (erroneous) stories of, for example, banning conker matches at school being prevalent) but human rights is catching up fast in terms of implausible stories.

The Conservative party, which did not vote against the HRA 1998 when introduced into Parliament, has picked up on this zeal and has latterly called for its repeal. In the 2005 general election campaign Michael Howard, the then leader, called for its repeal and this call was repeated in 2010 with the forming of the coalition government. (p. 179) The presence of the Liberal Democrats in the coalition prevented the Conservative party from repealing the Act but it is clear that both the Conservative front and back benches desire change and the 2015 election saw the Conservative party again promise to replace the Act. It is an interesting change from the position in 1998 where there was some ambivalence and even in 2005 the whole of the front bench was not signed up to repeal, with Dominic Grieve MP, the then shadow Attorney-General (and who subsequently became Attorney-General in the coalition government) stating:

The Human Rights Act has many benefits which it has conferred … I don’t think the … Act has anything to do with fuelling a compensation culture at all.106

The suggestion that the HRA 1998 has fuelled the so-called compensation culture is one of the most prominent attacks against the Act although the reality is that claims-management firms (that are frequently managed by non-lawyers) are more likely to be responsible. Certainly by the time of the next general election Grieve had had a change of heart (or was more politically on message) and campaigned for the repeal of the Act and the introduction, in its place, of a British Bill of Rights. Grieve, without any apparent irony, argued that the British courts were going further than Strasbourg and [showed] ‘a marked deference to Strasbourg’. A principal source of irritation to Grieve was apparently the way that the courts had approached s 2 and he proposed rewording it to allow for UK-specific traditions whilst ‘acknowledging the relevance of Strasbourg Court decisions’.107 Quite how this will differ from s 2 is not explained. It is difficult to see why the courts, who have in essence had a free hand on how to interpret s 2 (as the statute is silent as to its meaning), would alter their approach.

Much of the criticism appears to be piggybacked onto the general Euroscepticism. The media, and indeed many MPs, fail to distinguish between the UK and the EU and thus the ECHR and the HRA 1998 are caught up in the ideology of reacting against ‘Europe telling us what to do’. The fact that the ECHR is significantly older than the EU passes many by. A more interesting criticism is that the ECtHR is interfering in issues that were never contemplated at the time the Convention was written. This is arguably a stronger line of attack. There is no question that the ECHR, when drafted, was written to encapsulate a series of minimum standards of fundamental human rights. The ECtHR has undoubtedly broadened the scope of this instrument beyond that which the drafters would have contemplated, particularly in respect of social justice where issues such as same-sex rights and immigration matters have become increasingly important. That said, the ECtHR has been clear for some time that the Convention, unlike for example the US Constitution, is considered to be a ‘living instrument’. US Constitutional interpretation is frequently based on ascertaining what the ‘founding fathers’ intended. The ECHR is not and arguably was never intended to be. There is no doubt that rights under the ECHR have shifted dramatically since the 1950s, most notably in respect of same-sex relationships. In earlier decisions of the ECtHR the court adopted a highly sceptical approach yet recently it has adopted an extremely liberal approach. The answer would seem to lie in the fact that society has progressed significantly. In the twenty-first century society expects that people are treated differently and this is particularly true of issues of sexuality where the expectation is now that gay, (p. 180) lesbian, and bisexual persons should enjoy the same rights as heterosexuals. This is an example of a seismic shift and when coupled with other social changes, most notably in the way that states deal with, for example, immigration, surveillance, or pre-trial detention, undoubtedly causes tension.

A popular attack on the HRA 1998 is that it has politicized judges. The issue of judicial independence will be considered elsewhere in this book (see Chapter 9) but it is clear that there is an argument that relations between the judiciary and government have suffered in recent years, although interestingly perhaps less so in the coalition period. During the New Labour governments attacks on the judiciary were not uncommon and much of this was based on the belief that the HRA 1998 had permitted judges to interfere in areas that were best left to either Parliament or the executive (government).

The question that is not easily answered is whether repealing the HRA 1998 would make any difference. Is it likely that the genie could be placed back in the bottle? Arguably judges have become more active in recent years although there is a debate as to what extent this is the fault of the HRA 1998 and not, for example, the common-law development of judicial review (although it must be conceded that the HRA 1998 has probably encouraged judges to become more active in the field of judicial review). If the HRA 1998 was abolished is it likely that the courts would simply stop holding the government to account or believe that the government has the right to act in a way that is incompatible with human rights? It is difficult to believe that this would ever be the case. Whilst the HRA 1998 can, of course, be repealed it is not clear that the judges would not just rely on the common law to fill the gap, at least in terms of fundamental rights.

The Conservative party has suggested replacing the HRA 1998 with a British Bill of Rights. In October 2014, the party published a strategy paper ‘Protecting Human Rights in the UK’, setting out their plan to repeal the HRA 1998 and replace it with a British Bill of Rights and Responsibilities. Their proposed reforms would put the text of the ECHR into statute whilst further clarifying the Convention rights to ensure that there is recognition that along with rights there are responsibilities. Although the Convention rights will still be used, the Conservative party is proposing to ‘break the formal link between Britain and the ECHR’, thus altering the relationship between domestic courts and the ECtHR. It is important to note, however, that the Conservative party is not proposing an automatic withdrawal from the Convention. Instead they are suggesting that they will work with the Council of Europe when passing the proposed British Bill of Rights and Responsibilities to reach agreement on the way in which the Convention rights will be enshrined in this Bill. It is only in the event that agreement cannot be reached that the Conservative party suggests that the UK would be forced to withdraw from the ECHR. Such a withdrawal from the ECHR would have wide-reaching international implications including withdrawal from both the Council of Europe and the EU. However, without formally withdrawing from the ECHR it is difficult to believe that the courts would simply ‘turn back the clock’ and act in the way they did before the HRA 1998 was passed. Indeed, arguably the HRA 1998 simply accelerated a trend that was already beginning and so turning the clock back fully would not happen.

David Cameron was relatively lukewarm on the need to withdraw from the ECtHR and the preparation for the ‘British Bill of Rights’ seemed to be kicked into the long grass. However, his successor as Prime Minister—Theresa May—has long (p. 181) been a critic of the ECtHR, in part because she saw it as thwarting some of her work as Home Secretary.

The vote to withdraw from the EU has undoubtedly meant that the government has little time to work out how to withdraw from the ECHR. Trying to withdraw from both institutions at the same time would take more resources than the government has. However, the Eurosceptic ascendancy has certainly led to renewed calls to withdraw from the ECHR and it will be interesting to see what the 2020 manifesto contains. That said, it is notable that many Conservative MPs do not wish to see withdrawal from the ECHR and therefore it may be (politically) more challenging than withdrawing from the EU.

5.4 The Convention Articles

In this section a very brief examination will be made of the key Convention rights. Not all rights will be discussed here but rather the ones you are most likely to read about. This section is designed to help you understand the basic principle of the Convention rights and how it may be used in practice.

5.4.1 General issues

Before considering the principal Convention rights there are two issues that must be briefly considered. The first relates to the difference between ‘absolute’ and ‘qualified’ rights and the other relates to ‘positive’ and ‘negative’ obligations.

5.4.1.1 Absolute and qualified rights

It is sometimes said that Articles can be divided into absolute and qualified rights, the latter being Articles that can be interfered with under certain circumstances. The ECtHR itself uses this language when referring to Articles 8–11, each of which is in two parts. The first part sets out what the right or freedom is, and the second part sets out the circumstances under which the state can interfere with this right.

However, some have suggested that this is too basic an analysis108 and that all rights are subject to some qualifications. Certainly, as will be seen, there is an argument that this may be true. Article 2, the right to life, is often referred to as an ‘absolute’ right and yet on the face of the Article it states there are circumstances under which the state can kill and not infringe this right. Is this not a qualification? Similarly, other Articles do not appear to contain any qualification, eg Article 6 (right to fair trial), and yet the ECtHR has stated that this is not an absolute right.109 That said, this is perhaps merely a recognition that there is no ‘binary divide’ between absolute and qualified rights but that each exists alongside other laws.

The term ‘qualified right’ will continue to be used in this text especially in relation to Articles 8–11 as this is the wording used by the Strasbourg authorities. This will be discussed further later.

(p. 182) 5.4.1.2 Positive and negative obligations

Article 1 of the ECHR requires states to ‘secure to everyone in their jurisdiction the rights and freedoms [of the Convention]’ and this has been construed to mean that some Articles will have a positive obligation on the state to secure the right. A negative obligation is quite standard and merely means that the state (in our case the United Kingdom) must not infringe the rights under the Convention. For example, therefore, this means that the state must not use torture on someone. However, certain Articles (most notably Articles 2, 3, and 8) also place a positive obligation on the state to protect a citizen from receiving such treatment.110 Thus a state will not only be liable for actually infringing a right but also for allowing a private citizen to be harmed by another. That said, the positive obligation is not absolute and merely requires the state to take reasonable action and this includes, for example, ensuring that there are effective laws protecting an individual.111 To this extent it can be said that there is a limited ‘horizontal effect’ to the ECHR and, therefore, the HRA 1998.

5.4.2 Article 2: The right to life

The first substantive right to consider is Article 2, which states:

  1. 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law.

  2. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

    1. a. in defence of any person from unlawful violence;

    2. b. in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

    3. c. in action lawfully taken for the purpose of quelling a riot or insurrection.

In England and Wales Article 2(1) could, in fact, be shortened by the deletion of the second sentence (beginning ‘No one shall … ’) because the United Kingdom has also signed the Sixth Protocol to the Convention which abolishes the death penalty112 although theoretically it may be introduced to a limited extent in time of war.113 Whether this means anything in practice is perhaps open to question since the last time the United Kingdom formally declared war was in the Second World War (all other military actions since then have been ‘conflicts’ not ‘war’, the latter bearing a particular definition in international law).

5.4.2.1 Positive obligation

Article 2 is a classic example of where a positive obligation arises. Not only does Article 2 prevent the state from killing someone, it has been held that ‘everyone’s right to life shall be protected by law’ means that there is a positive obligation on the state to safeguard those who live within their jurisdiction.114 This has been explained as (p. 183) putting in place a legal framework that deters the commission of homicides but also a law enforcement mechanism to investigate and prosecute homicides.

The obligation to protect life does not mean that euthanasia must be criminalized115 and this would seem to apply to both active and passive forms of euthanasia116 and certainly some signatory states, most notably Switzerland, famously have euthanasia laws. What is clear, however, is that there is no right to die implicit within Article 2. Thus where a state does not permit euthanasia, Article 2 cannot be pleaded in an attempt to force the state to permit the ending of a life.

Perhaps the issue that has developed most significantly in recent years relates to the prevention of death. It was noted above that Article 2 includes a positive obligation and this has extended to situations where the state knows, or should know, that a danger exists.117 The ECtHR has indicated, in particular, that this duty exists where a person is in the detention of the state.118 The duty has also been considered to apply not only to homicides but also to suicides119 and thus where the state is aware that a prisoner may commit suicide then they should take preventative measures. One of the more controversial aspects of this positive duty is that it also applies to the level of planning that can be expected from law enforcement operations, in particular there should be careful consideration of the circumstances when lethal force may arise (which, of course, is expressly contemplated by Article 2(2)) and a plan formulated that minimizes those circumstances.120

There is also a procedural aspect to Article 2 and it has been held that there should be an independent and effective investigation into any death that has been inflicted by the state or, where the state has breached the duty discussed earlier.121 This procedural requirement has become increasingly important in recent years with cases discussing whether investigations into shootings by police officers conducted by the Independent Police Complaints Commission satisfy the requirements of Article 2.122

5.4.2.2 Use of lethal force

In terms of the circumstances under which lethal force can be contemplated, ie those set out in Article 2(2), it is unlikely that this will cause too many difficulties in the domestic context and it is very similar to domestic law under s 3 Criminal Law Act 1967 although there is a subtle difference of wording between s 3 and Article 2(2)(a).

5.4.3 Article 3: Prohibition of torture

Article 3 is the shortest of all the Convention articles:

No one shall be subjected to torture or inhuman or degrading treatment or punishment.

This is another absolute right and one that contains a positive obligation on states, ie not only must it not subject somebody to torture, inhuman, or degrading treatment, it (p. 184) must protect the person suffering this from others. Some uncertainty arose as to what the difference in wording was but in Ireland v United Kingdom123 the ECtHR defined the terms. The case followed accusations of mistreatment by the security force in Northern Ireland of suspected terrorists. The Court found that whilst no suspect had been tortured, they had suffered inhuman and degrading treatment, the Court believing that torture involved ‘deliberate inhuman treatment causing very serious and cruel suffering’ (p 80).

In order for a treatment or punishment to amount to either degrading or inhuman treatment it must pass a minimum threshold of severity124 since not every type of shameful treatment will amount to a breach of Article 3. That said, this is not to say that it is not actionable since it is possible action could be brought under the right to personal integrity under Article 8 (see 5.4.7). One of the principal battlegrounds in relation to Article 3 is the concept of corporal punishment, with the European Court reaching different conclusions as to its compatibility with Article 3.125

Outside of corporal punishment it has been suggested that a respective imbalance in power may lead to the threshold being passed, and accordingly abuse that takes place by law enforcement agencies while a suspect is within their custody is likely to constitute a breach of Article 3.126

Sexual assault will almost certainly pass the threshold for Article 3, not least because of the psychological issues that arise in respect of any sexual assault. This is most relevant in the context of the positive obligation placed on states and means that they must have appropriate and effective laws in place to criminalize sexual assaults and ensure they are appropriately investigated.127 In the (hopefully exceptional) circumstances where a prisoner is sexually assaulted by a state agent this will almost automatically lead to a breach of Article 3.128

5.4.4 Article 5: Right to liberty

Article 5 is an important Article within the ECHR as it governs protection from, inter alia, arbitrary arrest. Its form is as follows:

  1. 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

    1. (a) the lawful detention of a person after conviction by a competent court;

    2. (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

    3. (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

    4. (p. 185) (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

    5. (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

    6. (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

  2. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

  3. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

  4. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

  5. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

It can be seen that this is a very long article and accordingly only certain parts of the article will be considered. If you study Civil Liberties, Human Rights, or some Public Law modules then you are likely to spend considerable time examining this article because it is a crucial feature of the relationship between the state and the citizen in terms of restricting liberty.

Article 5 provides the circumstances in which a person can be deprived of liberty. It is sometimes said that it provides protection from arbitrary arrest but this is not necessarily true since Article 5 will be engaged only if the arrest leads to a person’s liberty being removed, although this could include being prevented from leaving the scene of arrest. Also, Article 5 does not necessarily provide administrative safeguards after arrest as certain aspects (eg police interviews) are to be found in other Convention Articles (eg Article 6).

That said, arrest is arguably the most important frequently used part of Article 5, and Article 5(1)(c) provides that this may be lawful but only where a person is brought before ‘the competent legal authority’. It is not immediately clear from the face of Article 5 what this means but in England and Wales the first person a suspect will face is a custody sergeant, a police officer, who will decide whether to authorize his detention.129 An inspector will then decide whether to continue detention after nine hours130 and finally a superintendent can take the decision to extend the time, for certain offences, to thirty-six hours in exceptional circumstances.131 After this time has elapsed the police have two options open to them. They either release the offender or they bring the offender before a magistrate. It is clear that this is the competent authority to whom Article 5(1) (p. 186) (c) refers. Article 5(2) and 5(3) then provide additional safeguards such as knowing why a person has been arrested and that he should be brought before a judge, which would appear to be an overlap with Article 5(1)(c) but it is clear that the primary purpose of Article 5(3) is dealing with securing liberty rather than the purpose of the arrest. Article 5(3) therefore provides that a person should either be brought before a court or granted bail. It is important to note, however, that it is possible for bail to be subject to conditions. In the early days of the HRA 1998 this had caused some difficulties with some lawyers suggesting that conditional bail was an infringement of human rights but this was quite clearly a misreading of the legal position.132

An important aspect of Article 5 is to provide a mechanism for securing liberty. This is to be found in Article 5(4)–(5). This provides that everyone shall have the right to petition a court to question the appropriateness of any detention and that where any detention is found to be unlawful there should be an automatic right to compensation. To an extent this may be thought comparable to the procedure known as habeas corpus but it is an important safeguard.

5.4.5 Article 6: Right to a fair trial

One of the most important rights in the Convention and certainly one of the most quoted is Article 6 of the ECHR. This provides:

  1. 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

  2. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

  3. 3. Everyone charged with a criminal offence has the following minimum rights:

    1. (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

    2. (b) to have adequate time and facilities for the preparation of his defence;

    3. (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

    4. (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

    5. (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

(p. 187) Entire books have been produced on Article 6 and this discussion will be brief and only consider some of the core elements of the Article. However, this is an issue that you will return to throughout your legal studies as the concept of a fair trial goes to the very heart of due process in the law.

The key words of the Article are actually its marginal note, and the ECtHR will frequently consider everything holistically and balance matters against the ‘right to a fair trial’ rather than focus on the individual rights. It should be noted that Article 6 applies to both civil and criminal matters although from the wording it is clear that most guarantees exist in respect of criminal trials. It is also important to note that ‘in the determination of his civil rights and obligations’ does not mean every civil matter will come within Article 6 and issues such as the treatment of state employees have been considered to be outside the scope of Article 6.133

In terms of its application to criminal law it can probably be said that the most important aspects of the Article are the ‘independent and impartial tribunal’,134 the presumption of innocence,135 the ability to defend oneself in court,136 and an implicit doctrine known as the ‘equality of arms’.

5.4.5.1 Independent and impartial tribunal

It may be thought that in a system of justice this would not be overly problematic but Article 6 has had a significant impact on how decisions relating to individuals are adjudicated. However, this has been an area of fruitful litigation for some time. Article 6 has had significant impact on how judges are appointed, particularly part-time judges, something most notable in the decision McGonnell v United Kingdom.137 In Scotland the judicial system was placed under severe pressure when it was decided that part-time judges were not independent or impartial because of the manner in which they were appointed,138 something that although not directly applicable to England led to the Lord Chancellor deciding that he would alter the way in which Recorders were appointed (see Chapter 9).

The same argument led to fundamental changes in the way that courts martial (ie judicial tribunals set up to adjudicate the law relating to serving members of HM Forces) were administered. The ECtHR has long had difficulties with the system of courts martial, not least because the judge and jury used to be all members of the armed services.139 Eventually civilian judges were introduced to solve this problem140 but it eventually culminated in new legislation being required to administer service justice.141

The most controversial application of this doctrine was, however, undoubtedly in relation to how those convicted of murder were sentenced. There is only one sentence that can be imposed for the crime of murder; that of life imprisonment (adult defendant) or detention for life (young offender). However, the Home Secretary decided how long a person should stay in prison by having the final say over the tariff.

Although a person is sentenced to life imprisonment it is extremely rare for a person to spend the rest of their life in prison. There is a system of early release which allows prisoners to be released ‘on licence’ (ie to be on good behaviour). Where a life sentence has been imposed then the minimum period before which a person can be considered for release is known as the tariff. After this period has expired the Parole Board will decide whether a person should be released or not.

The first case to call into question the appropriateness of a politician having this power was that of T v United Kingdom; V v United Kingdom.142 This was the case concerning the killers of Jamie Bulger. ‘T’ and ‘V’ were boys aged 10 years when they abducted and killed Jamie Bulger, a 2-year-old boy. The crime was controversial for a whole series of reasons but one important aspect of the case was that the ECtHR held that it was wrong for a politician to decide how long the boys should spend in prison, suggesting that this should be a judicial and not political function. This eventually culminated in R (on the application of Anderson) v Secretary of State for the Home Office143 in which the House of Lords held that the Home Secretary should not have any say in the setting of any tariff, including those for adult offenders. The decision was hugely controversial with the then current and previous Home Secretaries arguing that it should not be a purely judicial factor as society (through the political process) should also have the right to a say in how long its worst prisoners spend in gaol. However, ultimately the rule of law prevailed and the Criminal Justice Act 2003 gave ultimate responsibility for the setting of tariffs to the judiciary.

5.4.5.2 Presumption of innocence

The presumption of innocence has always featured as an inherent part of the English Legal System but Article 6(2) expressly makes reference to this. However, the ECtHR is prepared to go much further than this and have held that the presumption of innocence applies even where Article 6(2) does not. Article 6(2) relates to a ‘criminal charge’ and thus where a person is no longer charged (because, for example, he has been convicted of the offence) then Article 6(2) would not apply. This was relevant in Philips v United Kingdom144 which concerned a confiscation order made after a person had been convicted of trafficking drugs. Article 6(2) could not apply because he was no longer the subject of a criminal charge but the ECtHR held that the ‘right to a fair trial’ within Article 6(1) also included the presumption of innocence.

The main source of conflict in relation to Article 6(2) in the UK context has been in respect of the privilege against self-incrimination and the so-called ‘right to silence’. At one point, suspects who were interviewed by the police were able to remain silent when questioned and nothing could be drawn from that silence. However, the Criminal Justice and Public Order Act 1994 introduced the system of adverse inferences, meaning that where a person remains silent but then testifies at court with a statement that seeks to indicate why they did not commit the offence, the jury can take into account the fact that the person remained silent at the time of questioning. In Murray v United (p. 189) Kingdom145 and Condron v United Kingdom146 the ECtHR held that this did not amount to an infringement of the presumption of innocence under either Article 6(1) or Article 6(2).

Another source of controversy is domestic laws that seek to reverse the burden of proof. This was discussed earlier in the context of drugs147 but deserves brief attention here. One of the most prominent cases dealing with this point is Salabiaku v France148 which concerned French legislation about the smuggling of prohibited drugs. The legislation stated that someone who was in actual possession of goods while entering the country was presumed to be smuggling them unless they could prove to the contrary. This was challenged but the ECtHR held that it did not infringe Article 6(2) because the prosecution still had to prove key elements (most notably, possession of the goods, that the goods were illegal, and that the person brought them into the country) and thus the majority of the offence still needs to be proved, it was simply a presumption that could be rebutted by adducing evidence.

5.4.5.3 The right to defend oneself

Article 6(3) provides a series of steps that are designed to allow a person to defend himself when accused of committing a crime. However, in certain offences, most notably sex offences, a tension exists between allowing a person to present a rigorous defence and also ensuring that the victim of a crime is not put through unnecessary distress. This tension has already been examined earlier in this book in the context of statutory interpretation149 and it will also be examined in later chapters when we look at the course of a criminal trial where this specific issue has been discussed extensively by the courts.

The right to defend oneself is either in person or through the provision of a lawyer. A person should usually be allowed to attend proceedings against him but it is clear that legal representation should ordinarily be permitted. In Campbell and Fell v United Kingdom150 the ECtHR declared there was a breach of Article 6(3) when prisoners, who refused to attend a prison disciplinary panel, were also not permitted to send lawyers in their place. Article 6(3)(c) also encapsulates a right to legal aid, although only where a person lacks ‘sufficient means’ (which is not defined). The second qualification to this is that it must ‘be in the interests of justice to do so’ which implies that not all cases will require legally aided representation, and certainly it has been held that where the maximum sentence for an offence was a modest fine legal aid was not necessary.151 In Granger v United Kingdom152 the ECtHR found a breach where an appeal was more complicated than was initially thought. Presumably the complexity meant that it was unreasonable to expect a layperson (the appellant) to be capable of arguing the appeal without expert legal assistance.

(p. 190) 5.4.5.4 Equality of arms

One of the central features of Article 6(1) is that the ECtHR has held that there must be an ‘equality of arms’153 (and this applies to both civil and criminal cases). Put simply it means that the parties should be given reasonable opportunity to present their case in circumstances that do not put them at an obvious disadvantage to their opponent. The principal effect of this is to ensure, so far as possible, the neutrality of procedural issues and the opportunities of sides to adduce expert evidence, particularly in rebuttal.

5.4.6 Article 7: No punishment without law

Article 7 of the ECHR is particularly important within the criminal context. It provides:

  1. 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

  2. 2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Whilst there are many issues enveloped within Article 7, the most important is that criminal offences should not be retrospective. It has already been noted that whilst Parliament is competent to legislate as it sees fit, there is a convention that it will not create retrospective criminal offences (see 2.3.6.4). This rule undoubtedly predates Article 7 but following the introduction of the HRA 1998 it continues to be an extremely important principle by which Parliament must be guided.

Although Article 7 prevents retrospective punishment it is important to note that the Article does not prevent the interpretation of the law evolving through time. Perhaps the most important example of this is in respect of marital rape.

Example Marital rape

Historically the law had taken the approach that a man could not be guilty of raping his wife. This approach was based on the fact that the contract of marriage included the right to conjugal relations. The rule was widely condemned and eventually in R v R154 the House of Lords held that the rule no longer had any role in modern society.

This ruling led to the appellant’s conviction for rape being upheld along with his custodial sentence. He petitioned the ECtHR arguing that this ruling contravened Article 7. His argument was that at the time of the rape the law had recognized a marital exemption and that the House of Lords decision had therefore turned a lawful act into an unlawful act retrospectively. In SW v United Kingdom155 the ECtHR dismissed this argument suggesting that all the House of Lords had done was evolve the law and make it applicable to contemporary society. They also held that this evolution was predictable and thus was not retrospective.

(p. 191) An important restriction of Article 7 is that it applies only to criminal penalties. This has caused some debate where governments seek to introduce preventative measures on certain offenders. Perhaps the classic example of this in the context of the UK was the introduction of sex offender notification requirements (aka ‘sex offender register’). In 1997 the UK government introduced a system whereby those who were cautioned or convicted of certain offences were required to notify their name and address to the police and also to notify any changes, including being away from their house for a specified period of time.156 The Act applied to all those cautioned and convicted on the date it came into force but it also applied to those who had been convicted prior to the date it came into force and had not yet been released. In Ibbotson v United Kingdom157 the ECmHR (which was still in existence at the time) declared the application inadmissible holding that the scheme was not a punishment within the meaning of Article 7.158

A second use of Article 7 tends to focus on the ‘quality of the law’. It has been held that a law is required to be accessible to allow a person to appreciate that they are transgressing the law. Article 7 is taken to mean that a law should be defined with such precision that a person can identify whether they are committing a criminal act.159 Some crimes in England and Wales remain creatures of the common law, ie they are not set out anywhere in statute and only exist through the definitions established by the courts. It has been argued before that such crimes may fall foul of Article 7 although the courts remain sceptical of this argument and rarely entertain such applications.160

5.4.7 Article 8: Right to respect for private life

Alongside Article 6, Article 8 is one of the more popular rights that is litigated under the Convention. It provides:

  1. 1. Everyone has the right to respect for his private and family life, his home and his correspondence.

  2. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This is the first of the ‘qualified rights’ and it can be seen immediately that the qualification is contained in Article 8(2). Article 8(1) sets out the right, and Article 8(2) states the circumstances under which the right can be infringed.

As with Article 6, entire books have been produced just on the meaning of Article 8 and this is another right that you will come across throughout your legal studies, including in modules such as Land Law, Equity and Trusts, and Medical Law.

5.4.7.1 Not just private life

Article 8 is often referred to as the right to respect for private life yet Article 8(1) makes clear that a person has the right to respect for:

  • (p. 192) private life

  • family life

  • home

  • correspondence.

Not infrequently these will be subsumed within the concept of ‘private life’ but it is important to note that this need not be the case and, for example, correspondence can be a significant issue for prisoners. The ECtHR has held that it is not appropriate for prisoners’ correspondence to be routinely intercepted161 although it does accept that where there is a pressing need to do so, this can be justified (ie it will allow Article 8(2) to apply) although the limits of such interference will be strictly considered.162

The ECtHR has consistently stated that the purpose of Article 8 is to protect an individual from arbitrary interference with a person’s rights by the state163 and this takes on a series of forms. Perhaps one of the most significant in recent years has been in regulating surveillance. The United Kingdom traditionally operated on the basis that because the law did not state that public authorities could not put somebody under surveillance, they were free to do so164 whereas the ECtHR argues the opposite is true under the Convention. Accordingly a legal basis must exist under which Article 8 can be interfered with165 and this law must be readily accessible with appropriate legal (rather than administrative) safeguards against abuse of authorities.166 Within the context of surveillance this led to the enactment of the Regulation of Investigatory Powers Act 2000.

5.4.7.2 Positive obligation

Article 8, like Articles 2 and 3, contains both a positive and a negative obligation. This means that the state should not only ensure that they do not infringe Article 8 themselves but also ensure that they protect individuals from having their Article 8 rights infringed by others. A good example of this can be seen from Moreno Gomez v Spain167 where the ECtHR considered that the positive obligation meant that the impact of noise and smells must be considered when deciding whether to grant a licence to a night club within a residential area.

More significantly, the positive obligation also gives rise to the right to physical integrity and accordingly treatment that is below the minimum threshold for Article 3 (see 5.2.3.2) may come within Article 8.168 In Pretty v United Kingdom169 the ECtHR confirmed that ‘private life’ is a broad concept that cannot be precisely defined but that it covered, in essence, the respect for human dignity. The ECtHR conceded that whilst no right to suicide could be included within Article 2, it may be possible to infer a limited right under Article 8 but it also held that a blanket ban on assisted suicide could be justified under Article 8(2).

(p. 193) 5.4.8 Article 10: Freedom of expression

Although Article 10 is a qualified right it has been said that freedom of expression is the bedrock upon which a democracy is built170 and it is accordingly one of the most important Convention Articles. It provides:

  1. 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

  2. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Article 10 is, in essence, the Convention equivalent of the right to free speech although it has a much wider remit than this. Together with Article 11 (see 5.4.9) it is the primary right to allow protests. This is another Article that you will encounter throughout your legal study and particularly in modules such as Public Law, Constitutional Law, or Civil Liberties.

The classic case examining Article 10 was Sunday Times v United Kingdom171 which was also known as the ‘Spycatcher case’. The ECtHR made clear that Article 10 should be interfered with only when strictly necessary to do so and that where the press were concerned the proportionality was raised further because the press acts as the ‘public’s watchdog’.172 This is undoubtedly recognition of the fact that totalitarian states will frequently control the press and that one of the easiest ways of controlling the public is to place restrictions on the press.

Example Spycatcher

In 1985 a former member of MI5 (now the Security Services) sought to publish a memoir of his time within MI5. This was unprecedented as it provided operational details of his work within what was, at that time, still a secret service (indeed MI5 was not officially recognized until the enactment of the Security Service Act 1989). This included allegations that MI5 had bugged embassies, and also allegations that it and its sister service MI6 (now the Secret Intelligence Service) planned assassinations.

The book was immediately banned in the United Kingdom although ultimately certain newspapers, most notably The Sunday Times, tried to serialize the book. Injunctions were taken out restraining publication and when these were breached contempt of court proceedings were initiated. The Sunday Times, and others, alleged that this was a breach of Article 10 of the ECHR, something that the ECtHR ultimately agreed with.

(p. 194) The book received official clearance in 1988 when it was accepted that it had been serialized and published so widely around the world that it was illogical to ban sale in the United Kingdom especially since many copies had legitimately been imported from abroad.

However, Article 10 should not be considered merely a tool of the press and it is extremely important within the context of personal protests. Perhaps one of the most important statements came in the case of Redmond-Bate v DPP173 in which Sedley LJ said:

Free speech includes not only the inoffensive but the irritating, the contentious and the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.174

This is an important point and one undoubtedly within the spirit of Article 10. That said, however, it is also important to note that Article 10 is not absolute. Sedley LJ expressly considered that speech that tended to provoke violence would fall outside of his scope and Article 10(2) expressly considers qualifications in other situations. Perhaps the most controversial is ‘morals’ since this can be used to disguise a multitude of possibilities.

The leading case on the use of ‘morals’ as a qualification is Handyside v United Kingdom175 where the ECtHR stated that it was not possible to identify a single moral basis across all contracting states.176 Accordingly the Court would extend a ‘margin of appreciation’ to the individual states meaning that they would enjoy discretion to decide the moral standpoint of their society. However, the Court was also clear that the ECtHR had a supervisory role in ensuring that the application of this margin together with any restrictions placed on expression by the contracting states were strictly necessary. In the context of morals this must also take into account that society evolves and that something which may infringe society’s standards at one point in time may not do so later.

5.4.9 Article 11: Freedom of assembly

Article 11 is another key provision within the Convention and can be considered a fundamental principle of democracy. Alongside Article 10 it governs the right to protest but it also has a wider remit. The provisions of Article 11 are:

  1. 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

  2. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

(p. 195) It can be seen that Article 11 is concerned with the right to be associated with others, either by assembly (eg a demonstration) or to join organizations and unions. However, it is important to note that this is a qualified right and that the right to join is not universal. The final sentence makes clear that Article 11 may not extend to agents of the executive, particularly in respect of the police and armed forces. Given the nature of these agencies it is understandable that restrictions may need to be put in place to ensure the smooth operation of these important bodies. In the United Kingdom this exception has been used with the police and members of HM Forces being denied the right to join a union. As regards the police there are other bodies that fulfil some of the responsibilities of unions (the Police Federation for officers up to and including the rank of chief inspector, the Superintendents’ Association for officers of the rank of superintendent and chief superintendent, and the Association of Chief Police Officers for those of chief officer rank) but their responsibilities are curtailed and the police are not allowed to strike. This rule has also been used to justify restrictions on political activity for certain posts within local authorities.177

However, perhaps the more usual manner of engaging Article 11 is in respect of peaceful assembly. It can be seen from the very wording of Article 11(1) that the right only exists to peaceful protest and it follows therefore that where violence is likely then interferences may be possible. That said, issues of proportionality and necessity arise and, if at all possible, the state should try to minimize disruption rather than prevent assembly as a whole.

Example Parades Commission

We have already discussed the issue of the Parades Commission in Northern Ireland (see ‘Necessity and proportionality’) but this is also a classic example of the balance to be drawn under Article 11. The parades undertaken by Loyalist members of the Northern Ireland community are extremely controversial especially when routed through or near to Nationalist areas of the Province. There has been a long history of violence breaking out on such parades. However, the Parades Commission does not find it necessary to ban such assemblies but rather it exercises its powers to re-route the parades in order to minimize violence.178

5.4.10 Article 17

An important but often neglected Article within the Convention is Article 17 which prohibits abuse of the Convention itself. Article 17 is not an independent Article, in that it cannot be the sole subject of litigation but is instead used in combination with other Articles. It is particularly of importance to Articles 10 and 11. Article 17 provides:

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

(p. 196) The essence of this right is that one cannot rely on the Convention in order to undermine the rights of others. The classic example of this would be in respect of Articles 10 and 11 where someone may wish to join a racist organization that has as its purpose the undermining of the rights of others due solely to their colour. The Convention will not allow such matters because the right claimed is an affront to the rights and freedoms contained within the Convention.

Case Box Glimmerveen and Hagenback v Netherlands

In Glimmerveen and Hagenback v Netherlands179 the applicants had been convicted under Dutch law of distributing leaflets that were racist in character and called for the creation of a white state. The European Commission on Human Rights said: ‘the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention.’180 It dismissed the applicants’ contention that Article 10 protected their right to distribute the leaflets on the basis that they were seeking to use Article 10 in such a way as to undermine the rights and freedoms of others and thus Article 17 applied.

It is right that the ECHR contains such a provision although it is important that those who interpret the Convention do not abuse the power given to them under Article 17 since the rights under Articles 10–11 do include the right to be unpopular and offensive. However, where the rights claimed seek to undermine the rights of others it is quite clear that this should be stopped.

Summary

The Human Rights Act 1998 is an extremely important instrument and it is one that you will encounter throughout your law studies and your career. In this chapter we have noted:

  • Public bodies have a duty to act compatibly with the Convention. This is a civil and not criminal duty.

  • Defining a public authority is not easy although all courts and tribunals are automatically covered.

  • Public authorities tend to be divided into ‘pure’ public bodies (eg the police, prison service, local authorities) and ‘hybrid’ public authorities (eg universities).

  • The courts are given a wide discretion in interpreting the legislation to ensure that it is compliant with the Convention and they may also interpret the legislation itself.

  • The definition of a victim in the Human Rights Act 1998 is more restricted than, for example, judicial review procedures but this is in line with the ECHR itself.

  • Article 13 (right to an effective remedy) is not contained within the HRA 1998. There are competing arguments as to whether the HRA 1998 is itself a response to Article 13 or whether this means rights in the UK are not as protected.

  • (p. 197) Certain rights contain a positive obligation on the state. This means that not only must the state ensure that it does not breach the right, it must also ensure that it can protect its citizens from others infringing their right. The most obvious example of this is Article 2 where a state must protect its citizens where there is a known risk of harm.

End-of-chapter questions

  1. 1. To what extent do you think it is possible to repeal the Human Rights Act 1998?

  2. 2. Should the Human Rights Act 1998 be fully incorporated, ie apply both vertically and horizontally? What do you think the implications of extending the Act horizontally would be?

  3. 3. Read the box at 5.2.3.2 concerning precedent and s 2. Is the decision in Kay not in direct contravention of s 2 HRA 1998? Was it not Parliament’s intention that the courts follow decisions of the ECtHR and does this not mean that a court of first instance, when faced with such a precedent, will be acting incompatibly with the ECHR, thus breaching it?

  4. 4. Read Chapter 16 on criminal appeals. If a court, including the ECtHR, considers that a trial is unfair should the conviction be quashed? Read R v Rowe, Davis and Johnson (No 3) [2001] 1 Cr App R 8.

Further reading

Dwyer DM, ‘Rights Brought Home’ (2005) 121 Law Quarterly Review 359–64.Find this resource:

This is a useful article which looks at how the HRA 1998 has been implemented.

Klug F and Starmer K, ‘Standing Back from the Human Rights Act: How Effective is it Five Years on?’ [2005] Public Law 716–28.Find this resource:

This is a very good article, co-authored by the former Director of Public Prosecutions, which examines how the Act has been used in practice.

Fredman S, ‘From Deference to Democracy: The Role of Equality under the Human Rights Act 1998’ (2006) 122 Law Quarterly Review 53–81.Find this resource:

This is a good article which includes a useful examination of the margin of appreciation.

Sales P, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ [2012] Public Law 253–67.Find this resource:

This is an excellent article that dissects the approach adopted to s 2 HRA 1998.

For multiple-choice questions, updates to this chapter, and links to useful websites, please visit the Online Resources at: www.oup.com/uk/gillespie7e/ (p. 198)

Notes:

1. Lord Bingham of Cornhill, The Business of Judging: Selected Essays and Speeches (OUP 2000) 131.

2. Rights Brought Home: The Human Rights Bill, October 1997 (Cmnd 3782) para 1.5.

3. Bingham (2000) notes that the decision to grant a right of petition to the ECtHR was extremely controversial at the time (p 134).

4. Rights Brought Home: The Human Rights Bill, October 1997 (Cmnd 3782) para 1.10.

5. Lord Bingham of Cornhill The Business of Judging: Selected Essays and Speeches (OUP 2000) 135.

6. Jonathan Cooper, ‘Parliamentary Debates on the Human Rights Bill’ [1998] European Human Rights Law Review 1–4 at 4.

7. DM Dwyer, ‘Rights Brought Home’ (2005) 121 Law Quarterly Review 359–64, 362–3.

8. Horizontal effect in this context means the adjudication between two private parties as distinct from the ‘vertical effect’ of adjudicating between the state and private citizen.

9. For a summary of the arguments surrounding ‘horizontal effect’ see William Wade ‘Human Rights and the Judiciary’ [1998] 5 European Human Rights Law Review 524–5 and Deryck Beyleveld and Shaun Pattinson, ‘Horizontal Applicability and Horizontal Effect’ (2002) 118 Law Quarterly Review 623–46.

10. Sandra Fredman, ‘Bringing Rights Home’ (1998) 114 Law Quarterly Review 538–43, 538.

11. David Feldman, ‘Remedies for Violations of Convention Rights under the Human Rights Act’ [1998] 6 European Human Rights Law Review 691–711, 709–11.

12. Lord Bingham of Cornhill, The Business of Judging: Selected Essays and Speeches (OUP 2000) 137, 140.

13. HRA 1998, s 6(4).

14. [2010] UKSC 52.

15. The submissions of counsel in R (Huitson) v Revenue and Customs Commissioners [2011] QB 174 clarifies this point (see p. 176).

16. [2004] 1 AC 546.

17. ibid, 554.

18. [2008] 1 AC 95.

19. See Health and Social Care Act 2008, s 145.

20. For an illustration of this see R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587.

21. See the report of the Committee on the Health and Social Care Bill (HC 46 HL 303 2007–08).

22. [2016] EWHC 1117 (Admin).

23. The chapter consists of a group of clerics (the Cathedral Dean and residentiary Canons) and certain laypersons. They are charged with the administration of the Cathedral on behalf of the Bishop.

24. Right to respect for private and family life, home, and correspondence (see 5.4.7).

25. Diocesan bishops of the Church of England hold both a spiritual office (the bishopric) and a secular office, the latter is designed to allow for diocesan property and businesses to be held by the corporate body of the Bishop’s office rather than the bishop in a personal capacity.

26. Bishops are appointed by the Queen as Head of the Church of England and chapter members are appointed by the Church of England.

27. [2016] EWHC 1117 (Admin) [67].

28. [2004] 1 AC 546, 554.

29. ibid, 555.

30. Gavin Phillipson, ‘The Human Rights Act 1998, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62 Modern Law Review 824–9, 837.

31. [2004] 2 AC 457.

32. (1992) 15 EHRR 44.

33. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 791.

34. ibid, 792.

35. ibid, 795.

36. See Senior Courts Act 1981, s 31.

37. Jonathan Cooper, ‘Parliamentary Debates on the Human Rights Bill’ [1998] European Human Rights Law Review 1–4 at 2.

38. Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and the Executive’ [2003] Public Law 308–25, 312–13.

39. [2006] UKHL 26.

40. HRA 1998, s 7(1)(a).

41. ibid, s 7(1)(b).

42. ibid, s 7(3)(4).

43. ibid, s 7(5).

44. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 334–5 who discuss the extent to which the ECtHR are prepared to become involved in such arguments.

45. ibid, 337 although it should be noted that this applies only to penalties and thus where an ancillary matter is attached that is not punitive then Article 7 will not apply; see, most notably, Adamson v UK (1999) 28 EHRR CD 209.

46. See Marckx v Belgium (1979–80) 2 EHRR 330.

47. Philip Sales, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ [2012] Public Law 253–67, 257.

48. ibid, 255–7.

49. [2002] UKHL 46.

50. ibid, [26].

51. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 16.

52. Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 148.

53. Francesca Klug, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’ [2010] 6 European Human Rights Law Review 621–30, 623.

54. [2010] 2 WLR 47.

55. Contrary to Offences Against the Person Act 1861, s 18.

56. (2009) 49 EHRR 1.

57. See, for example, Philip Sales, ‘Strasbourg Jurisprudence and the Human Rights Act: A Response to Lord Irvine’ [2012] Public Law 253–67, 264–6.

58. ibid, 260.

59. [2006] 2 AC 465.

60. [2008] EWHC 2565.

61. R (on behalf of Pretty) v DPP [2002] 1 AC 800.

62. Pretty v United Kingdom (2002) 35 EHRR 1.

63. [2008] EWHC 2565 [46].

64. [2010] 2 WLR 47.

65. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 11.

66. ibid, 13.

67. (1979) 1 EHRR 737.

68. [2000] 2 AC 326.

69. ibid, 380.

70. Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and the Executive’ [2003] Public Law 308–25, 315.

71. ibid.

72. Ian Leigh, ‘Taking Rights Proportionately: Judicial Review, the Human Rights Act and Strasbourg’ [2002] Public Law 265–87, 266.

73. ibid, 276.

74. Simon Atrill, ‘Keeping the Executive in the Picture: A Reply to Professor Leigh’ [2003] Public Law 41–51, 44.

75. See, for example, Hertel v Switzerland (1999) 28 EHRR 534.

76. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 12.

77. Simon Atrill, ‘Keeping the Executive in the Picture: A Reply to Professor Leigh’ [2003] Public Law 41–51, 51.

78. Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and the Executive’ [2003] Public Law 308–25, 316.

79. (1989) 11 EHRR 439.

80. ibid, 469.

81. [1948] 1 KB 223.

82. [2001] 2 AC 532.

83. ibid, 547.

84. HRA 1998, s 4(5).

85. ibid, s 4(5)(f).

86. See Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, 576.

87. HRA 1998, s 10(1)(a).

88. [2002] QB 1.

89. SI 2001/3712.

90. HRA 1998, s 9.

91. ibid, s 9(3).

92. ibid, s 9(4).

93. ibid, s 8(2).

94. ibid, s 8(3).

95. ibid, s 8(4).

96. (2005) 42 EHRR 849.

97. David Harris et al, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 859.

98. ibid.

99. [2001] 1 WLR 2060.

100. [2004] 2 AC 72.

101. An Attorney-General’s Reference in this context is a hypothetical appeal whereby the appellate courts are asked a point of law that arises from an acquittal. It proceeds as though it were an appeal but the decision of the appellate courts does not alter the acquittal, it simply forms a precedent for future cases (see 15.4.1).

102. [2004] 2 AC 72, 89.

103. Andrew Ashworth, ‘Delay in Criminal Proceedings: Unreasonable Delay (AG Ref (No 2 of 2001))’ [2004] Criminal Law Review 574–6, 576.

104. [2004] 2 AC 72, 110.

105. Lord Irvine of Lairg, ‘The Impact of the Human Rights Act: Parliament, the Courts and the Executive’ [2003] Public Law 308–25, 324.

106. The Times, 30 March 2005, news (p 28).

107. Francesca Klug, ‘Follow or Lead? The Human Rights Act and the European Court of Human Rights’ [2010] 6 European Human Rights Law Review 621–30, 627.

108. See, for example, Simon Atrill, ‘Keeping the Executive in the Picture: A Reply to Professor Leigh’ [2003] Public Law 41–51, 44.

109. See, for example, Condron v United Kingdom (2001) 31 EHRR 1.

110. See, for example, Osman v United Kingdom (2000) 29 EHRR 245.

111. See, for example, X and Y v Netherlands (1986) 8 EHRR 235.

112. Art 1 of the Sixth Protocol.

113. Art 2 of the Sixth Protocol.

114. LCB v United Kingdom (1999) 27 EHRR 212.

115. Widmer v Switzerland App No 20527/92 (1993).

116. See the discussion in Pretty v United Kingdom (2002) 35 EHRR 1.

117. See, most notably, Osman v United Kingdom (2000) 29 EHRR 245.

118. See, for example, Edwards v UK (2002) 35 EHRR 487 where a prisoner was killed by another prisoner in circumstances where an attack was possible.

119. Keenan v United Kingdom (2001) 33 EHRR 38.

120. McCann v United Kingdom (1996) 21 EHRR 97.

121. See, for example, Jordan v United Kingdom (2003) 37 EHRR 2.

122. See, for example, Saunders and another v IPCC and others [2008] EWHC 2372 (Admin) which raised questions about the practice of allowing police officers to confer before making their statements.

123. (1979–80) 2 EHRR 25.

124. See Costello-Roberts v United Kingdom (1995) 19 EHRR 112.

125. See ibid; cf A v United Kingdom (1999) 27 EHRR 611.

126. See, for example, Selmouni v France (2000) 29 EHRR 403.

127. See X and Y v Netherlands (1986) 8 EHRR 235.

128. Aydin v Turkey (1998) 25 EHRR 251.

129. Police and Criminal Evidence Act 1984, s 37.

130. ibid, s 40.

131. ibid, s 42.

132. Alisdair Gillespie, ‘Curfew and Bail’ (2001) 151 New Law Journal 465–6.

133. See, for example, Lombardo v Italy (1996) 21 EHRR 188.

134. ECHR, Art 6(1).

135. ibid, Art 6(2).

136. ibid, Art 6(3)(b)–(d).

137. (2000) 30 EHRR 289.

138. Davidson v Scottish Ministers (No 2) [2004] UKHL 34.

139. Morris v United Kingdom (2002) 34 EHRR 52.

140. Cooper v United Kingdom (2004) 39 EHRR 8.

141. Armed Forces Act 2006.

142. (2000) 30 EHRR 121.

143. [2003] 1 AC 837.

144. [2001] Crim LR 817.

145. (1996) 22 EHRR 29.

146. (2001) 31 EHRR 1.

147. R v Lambert [2001] UKHL 37.

148. (1991) 13 EHRR 379.

149. See R v A (No 2) [2002] 1 AC 45 and see 2.3.4.

150. (1985) 7 EHRR 165.

151. Gutfreund v France (2006) 42 EHRR 48.

152. (1990) 12 EHRR 469.

153. See, most notably, Neumeister v Austria (1979–80) 1 EHRR 91.

154. [1992] 1 AC 599.

155. (1996) 21 EHRR 363.

156. Sex Offenders Act 1997 now contained within Sexual Offences Act 2003, pt 2.

157. (1999) 27 EHRR CD 332.

158. Something confirmed by the ECtHR in Adamson v United Kingdom (1999) 28 EHRR CD 209.

159. See, for example, R v Rimmington [2005] UKHL 63 (relating to the offence of public nuisance).

160. An interesting example of this can be seen in R v Norman [2016] EWCA Crim 1564 [47]–[49].

161. Valasinas v Lithuania App No 44558/98.

162. Foxley v United Kingdom (2001) 31 EHRR 25.

163. See, for example, Glaser v United Kingdom (2001) 33 EHRR 1 [63].

164. See, for example, Malone v Commissioner of Police for the Metropolis (No 2) [1979] Ch 44.

165. Malone v United Kingdom (1985) 7 EHRR 14.

166. Govell v United Kingdom (1997) 23 EHRR CD101.

167. (2005) 41 EHRR 40.

168. See X and Y v Netherlands (1986) 8 EHRR 235.

169. (2002) 35 EHRR 1.

170. Bowman v United Kingdom (1998) 26 EHRR 1.

171. (1992) 14 EHRR 229.

172. ibid, [50].

173. [2000] HRLR 249.

174. ibid, 260.

175. (1979–80) 1 EHRR 737.

176. ibid, [48].

177. See Ahmed and others v United Kingdom (2000) 29 EHRR 1.

178. See Re Tweed’s Application for Judicial Review [2001] NI 165.

179. (1982) 4 EHRR 260.

180. (1982) 4 EHRR 260, 267.