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The Human Rights Act 1998 and constitutional principles*

Published online by Cambridge University Press:  02 January 2018

David Feldman
David Feldman*
Affiliation:
University of Birmingham
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Abstract

The article assesses the interaction between the United Kingdom's traditional constitutional principles and the innovative Human Rights Act 1998, which introduces a range of substantive, constitutional values through ‘Convention rights. These values are compatible with collective as well as individual interests, and the scheme of the Act accommodates existing constitutional principles. The Act should therefore generate evolutionary rather than revolutionary change. The limited measure of judicial review of primary legislation should not threaten parliamentary sovereignty. In its technical detail the Act represents a small step beyond the principle of dualism of national and international law, subtly affecting national sovereignty and influencing the research agenda of legal practitioners and academics. The main constitutional effect of the Act, however, will be to bolster Rule of Law principles, with new remedies focusing attention on the notion of equality before the law and putting the conceptual distinction between public and private law under increasing pressure.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 2 , June 1999 , pp. 165 - 206
Copyright
Copyright © Society of Legal Scholars 1999

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Footnotes

*

I am grateful to Colin Crawford, Evelyn Ellis, Helen Fenwick, Conor Gearty, Stephen Grosz, Adrian Hunt, Jeremy McBride, Chris McCrudden, Dominic McGoldrick, John Miller, Derek Morgan, Gavin Phillipson, Brian Thompson, and Elizabeth Wicks for discussions and illuminating comments. Errors and eccentricities are my own.

References

1. For a thorough analysis and critique of the traditional approach of our judges to international human rights law, see M Hunt Using Human Rights Law in English Courts (Oxford: Hart Publishing, 1997).

2. See Sir Robin Cooke P (as he then was) in New Zealand Drivers Association v New Zealand Road Carriers (1982) 1 NZLR 374, 390, Fraser v State Services Commission (1984) 1 NZLR 116, 121, and Taylor v New Zealand Poultry Board (1984) 1 NZLR 394,398, all CA of NZ; T R S Allan Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford: Clarendon Press, 1993). esp ch 6; Sir J Laws ‘Is the High Court the guardian of fundamental constitutional rights? (1993) PL 59-79; and compare R Singh The Future of Human Rights in the United Kingdom (Oxford: Hart Publishing, 1997) ch 3.

3. See European Communities Act 1972. s 2; R F V Heuston Essays on Constitutional Law (London: Stevens, 2nd edn, 1964) ch 1; A W Bradley ‘The sovereignty of Parliament - in perpetuity? in J Jowell and D Oliver (eds) The Changing Constitution (Oxford: Clarendon Press, 3rd edn. 1994) ch 4.

4. H L A Hart The Concept of law (Oxford: Clarendon Press, 2nd edn, 1994) pp 94–99.

5. See eg Handyside v United Kingdom Series A, No 24, para 49 of the judgment; D Feldman ‘Democracy, the rule of law and judicial review (1990) 19 Federal LR 1-30.

6. Something similar happened in Canada under the liberal-conservative Prime Minister Brian Mulroney, although a higher level of political pluralism was maintained: see W A Bogart Courts and Country: The Limits of Litigation and the Social and Political Life of Canada (Toronto: Oxford University Press, 1994) pp 6–8.

7. See Sir Richard Scott Return to an Address of the Honourable the House of Commons dated 15th February 1996 for the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, HC 115 of 1995-96 (London: HMSO, 1996) 5 vols and index; A Tomkins The Constitution after Scott: Government Unwrapped (Oxford: Clarendon Press, 1998) chs 1 and 2.

8. The Act also contains provisions governing the conditions of appointment and pension arrangements for UK judges who become members of the European Court of Human Rights. This article does not examine this matter.

9. For an idea of the potential scope of the Act, see J Wadham and H Mountfield Blackstone's Guide to the Human Rights Act 1998 (London: Blackstone Press, 1999) ch 9.

10. See Human Rights Act 1998, ss 3, 6.

11. Human Rights Act 1998, s 6(3) and (5).

12. See Human Rights Act 1998, s 1.

13. See Human Rights Act 1998, s 4.

14. The USA approach was advocated by Lord Lester in his 1995 Human Rights Bill, although he compromised to secure support for it in the House of Lords, leaving a situation where incompatibility would have impliedly repealed previous but not subsequent legislation. He supported the government's approach in the 1997 Bill, although only after what he described as ‘a good deal of arm-twisting by some members of this place more noble and learned than myself . (House of Lords Official Report, 18 November 1997, vol 583, co1 521.) The Canadian model is still advocated by Sir W Wade QC ’The United Kingdom's Bill of Rights in University of Cambridge Centre for Public Law (ed) Constitutional Reform in the United Kingdom: Practice and Principles (Oxford: Hart Publishing, 1998) ch 6, p 65. G Marshall Patriating rights - with reservations: the Human Rights Bill 1998 . ibid, ch 8, pp 76–77, favours the even stronger USA approach.

15. J Straw and P Boateng ‘Bringing Rights Home: Labour's plans to incorporate the European Convention on Human Rights into United Kingdom law (1997) EHRLR 71-80. For discussion, see J Wadham ’Bringing rights half-way home (1997) EHRLR 141–145.

16. Cm 3782 (London: The Stationery Office, 1997).

17. See Human Rights Act 1998, s 1 (1).

18. Human Rights Act 1998, ss 1(2), 14, 15, 16 and 17 and Sch 3. For excellent commentaries on all aspects of the ECHR and the Strasbourg case law, see eg D J Harris, M O'Boyle and C Warbrick Law of the European Convention on Human Rights (London: Butterworths, 1995); P van Dijk and G J H van Hoof et al Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer, 3rd edn, 1998).

19. Oliver, D ‘The underlying values of public and private law in M Taggart (ed) The Province of Administrative Law (Oxford: Hart Publishing, 1997) ch 11.Google Scholar

20. D Feldman ‘Privacy-related rights and their social value in P Birks (ed) Privacy and Loyalty (Oxford: Clarendon Press, 1997) ch 2; D Feldman ’Content neutrality in I Loveland (ed) Importing the First Amendment: Freedom of Expression in American, English and European Law (Oxford: Hart Publishing, 1998) ch 8.

21. On the role of these values in the decision-making of the House of Lords in the 1980s, see D Feldman ‘Public law values in the House of Lords (1990) 106 LQR 246.

22. See B S Markesinis and N Nolte ‘Some comparative reflections on the right of privacy of public figures in public places in P Birks (ed), above n 20, ch 5; B Markesinis ’Privacy, freedom of expression and the Human Rights Bill: lessons from Germany (1999) 115 LQR 47–88.

23. S Kentridge QC ‘The incorporation of the European Convention on Human Rights, in University of Cambridge Centre for Public Law (ed) Constitution of Reform in the United Kingdom, above n 14, ch 7 at p 69.

24. Above n 23.

25. See eg his speech towards the end of the third reading debate, HL Official Report, 1998 5 February, vol 585, cols 830–833.

26. This point was made by the Lord Chancellor: HL Official Report, 3 November 1997, (1999) 115 LQR47-88. vo1 582, cols 1229-1230. See R Singh ‘Privacy and the media after the Human Rights Act (1998) EHRLR 712–729.

27. Lord Irvine, Lc HL Official Report, 1998 5 February, vol 585 Google Scholar, col 841.

28. A-G v Guardian Newspapers Ltd (1987) 1 WLR 1248, HL.

29. Baroness, Young Supported by the Bishop of Ripon, on third reading in the House of Lords: HL Official Report, 1998 5 February, vol 585 Google Scholar, cols 770–773, and see also col 790.

30. For concern about this, see eg Baroness Young during the committee stage, HL Official Report, 24 November 1997, col 583, col 801.

31. See Tyrer v United Kingdom ECtHR Judgment of 25 April 1978, Series A, No 26; Costello-Roberts v United Kingdom, ECtHR Judgment of 25 March 1993, Series A, No 247–C.

32. Article 57 was originally art 64. On reservations under the ECHR, see van Dijk and van Hoof above n 18, pp 773–784. On reservations in respect of treaties generally in international law, see the Vienna Convention on the Law of Treaties 1969, arts 19-23; I Brownlie QC Principles of Public International Law (Oxford: Clarendon Press, 4th edn, 1990) pp 608-611; M Shaw International Law (Cambridge: Cambridge University Press, 4th edn, 1997) pp 641-649, esp at 647-648; D W Greig ‘Reservations: equity as a balancing factor? (1995) 16 AYIL 21–172.

33. Human Rights Act 1998, ss 1(2) and 15 and Sch 3, Pt II.

34. Article 15(1), (2).

35. Series A, No 145, (1988) 11 EHRR 117.

36. The powers are now contained in Prevention of Terrorism (Temporary Provisions) Act 1989, s 14 (as amended by Criminal Justice (Terrorism and Conspiracy) Act 1998, s 3) and Sch 5, para 6.

37. Series A, No 258–B (1993).

38. See Human Rights Act 1998, ss 1(2) and 14, and Sch 3, Pt I.

39. Feldman, ‘Content neutrality, above n 20.

40. Raymond v Honey (1983) 1 AC 1, HL; R v Lord Chancellor, exp Witham (1997) 2 All ER 779, DC.

41. R v Secretary of State for Social Security, ex p Joint Council for the Welfare of Immigrants (1996) 4 All ER 385, (1997) 1 WLR 275, CA.

42. Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147, HL.

43. See eg Pickstone v Freemans plc (1989) AC 66, HL (implying words into a statutory instrument) and Litster v Forth Dry Dock & Engineering Co Ltd (1990) 1 AC 546, HL (creative interpretation of clear words). Both these cases were decided before the injunction was granted against the Crown in R v Secretary of State for Transport, ex p Factortame (No 2) (1991) 1 AC 603, CJEC and HL.

44. Compare G Marshall ‘Interpreting interpretation in the Human Rights Bill (1998) PL 167-170 with Lord Lester of Heme Hill QC ’The art of the possible - interpreting statutes under the Human Rights Act (1998) EHRLR 665 at 671–672.

45. R Dworkin Taking Rights Seriously (London: Duckworth, 2nd impression, 1978) pp 25–26.

46. Note that the Secretary of State may amend Sch 1 to the Act by order to give effect to a new protocol to the Convention: see Human Rights Act 1998, s l(4)-(6). In practice, new protocols have always extended the range of Convention rights, but it is not inevitable that this will always be the case.

47. Human Rights Act 1998, s 3(2), which similarly protects incompatible subordinate legislation ‘if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.

48. Human Rights Act 1998, s 21(1). Some remedial orders will amend primary legislation which is not an Act of Parliament, such as Orders in Council under the Royal Prerogative or orders made under the Northern Ireland legislation, and so will not themselves be primary legislation within the meaning of the Act: cf ss 10 and 6(6)(b).

49. R v Secretary of State for the Home Department, exp Fire Brigades Union (1995) 2 All ER 244, HL (Lords Browne-Wilkinson, Lloyd and Nicholls; Lords Keith and Mustill dissenting).

50. (1985) AC 374, HL.

51. See sub-paras (c)-(e) of the definition of ‘subordinate legislation in Human Rights Act 1998, s 21(1).

52. Lord Irvine, Lc In the House of Lords closing the third reading debate: HL Official Report, 1998 5 February, vol 585 Google Scholar, col 840.

53. C Gearty, presentation to a seminar on the Human Rights Act 1998 conducted at the Midland Hotel, Manchester, 16 January 1999.

54. ‘Legislation which can be amended by remedial order does not include Measures of the Church Assembly or General Synod: Human Rights Act 1998, s 10(6).

55. Rights Brought Home, paras 3.6–3.7.

56. HL Official Report, 1997 3 November, vol 582, col 1234. There is, however, a Human Rights Commission for Northern Ireland.

57. HL Official Report, 1997 18 November, vol 583, col 476, Lord Irvine during the committee stage.

58. Rights Brought Home, paras 3.4–3.5.

59. See eg British Railways Board v Pickin (1974) AC 765, HL. However, the case is not on all fours with s 19, since it concerned a private rather than public Act and an allegation of bad faith rather than breach of a statutory precondition to considering the Bill.

60. See eg the Defamation Act 1996, s 13, amending art 9 of the Bill of Rights 1689. There had previously been a symmetrical privilege for MPs, limiting their right to sue for defamation in respect of allegations about their behaviour in Parliament, equally to the limits on the right of other people to sue them. Lord Hoffmann sponsored s 13, making the privilege asymmetrical by allowing MPs to sue but not to be sued, in order to allow Mr Neil Hamilton MP to sue the Guardian newspaper. In the event, the result of the litigation was disastrous for Mr Hamilton.

61. A-G for New South Wales v Trethowan (1931) 44 CLR 394, HC of Australia; affirmed on rather narrower grounds (1932) AC 526, PC.

62. Human Rights Act 1998, ss 4, 5.

63. R v Secretary of state for Transport, ex p Factortame Ltd (No 2) (1991) 1 AC 603, ECJ and HL; Francovich and Bonifaci v Italy Cases C-6 and 9/90 (1991) ECR 1-5357, ECJ.

64. See Human Rights Act 1998, s 6(3), (6).

65. The Scotland Act 1998, s 43, provides that the Scottish Parliament is a public authority for the purposes of the Prevention of Corruption Acts 1889–1916.

66. Government of Wales Act 1998, s 38; Scotland Act 1998, s 40.

67. See eg Human Rights Act 1998, Sch 2, para 1(2).

68. Human Rights Act 1998, s 10(6).

69. H Kelsen General Theory of Law and State trans A Wedberg (Cambridge, Mass: Harvard University Press, 1945) pp 123–124.

70. See Lord, Irvine Introducing the Second Reading debate in the HL Official Report, 1997 3 November, vol 582 Google Scholar, col 1231.

71. Human Rights Act 1998, s 10(2).

72. Rights Brought Home para 2.18.

73. Human Rights Act 1998, Sch 2, paras 3(1)(a), 5.

74. Human Right Act 1998, Sch 2, para 5.

75. Human Rights Act 1998, Sch 2, paras 2(a), 3(2).

76. Human Rights Act 1998, Sch 2, para 2(b).

77. Human Rights Act 1998, Sch 2, para 4.

78. Human Rights Act 1998, s 10(1)(b).

79. Human Rights Act 1998, ss 1(4)–(6), 20(1).

80. See Human Rights Act 1998, ss 14, 15, 16 and 17

81. See eg the court's gradually diminishing majority for allowing national authorities to decide whether to take official note for legal purposes of a transsexual's reassigned gender: Sheffield and Horsham v United Kingdom Judgment of 30 July 1998.

82. See eg Otto-Preminger-Institut v Austria Judgment of 20 September 1994, Series A, No 295-A; Wingrove v United Kingdom Judgment of 1996 25 November, Reports 1996-V, vol 33.

83. See D Feldman ‘Proportionality and the Human Rights Act 1998 in E Ellis (ed) The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999); Sir J Laws ’The Limitations of Human Rights (1998) PL 254-265 at 258; D Pannick QC Principles of interpretation of Convention rights under the Human Rights Act and the discretionary area of judgment (1998) PL 545-551.

84. See Feldman, above n 83.

85. See eg two cases which by coincidence are reported adjacently in the All England Law Reports: R v Bournewood Community and Mental Health NHS Trust, ex p L (Secretary of State for Health and others intervening) (1998) 3 All ER 289, HL, and R v Chief Constable of North Wales Police, exp AB (1998) 3 All ER 310, CA.

86. Human Rights Act 1998, s 7(1), (3), (4), (7). On the Strasbourg case law on this, see Harris et al, above n 18, pp 632–638.

87. Human Rights Act 1998, s 14(1)(b). An equivalent definition of ‘designated reservation is given in s 15(l)(b).

88. See Human Rights Act 1998, ss 14(5) (derogations) and 15(5) (reservations).

89. There is no equivalent provision for reservations.

90. Article 15(1), (2).

91. (1969) 2 AC 147, HL.

92. Shaw, above n 32, pp 647–648, citing, inter alia, the judgments of the European Court of Human Rights in Belilos v Switzerland Series A, No 132 and Loizidou v Turkey Series A, No 310 (1995).

93. Of course, a principle of substantive equality may operate in public law outside the constraints of the Rule of Law, as J Jowell, ‘Is equality a constitutional principle? (1994) 47(2) CLP 1-18, has persuasively argued.

94. See Lord Irvine of Lairg Lc, HL Official Report, 1997 18 November, vol 583, col 477.

95. HL Official Report, 1997 18 November, vol 583, col 475.

96. Human Rights Act 1998, s 8(1), (2), (6), discussed in D Feldman ‘Remedies for violations of Convention rights under the Human Rights Act (1998) EHRLR 691–711. In relation to tribunals, the minister responsible for the particular tribunal in question is to have power to extend the remedial competence of the tribunal by Order in Council to allow it to award compensation: s 7(11),(12).

97. See Boddington v British Transport Police (1998) 2 All ER 203, HL.

98. Series A, No 91, Judgment of 26 March 1985, ECtHR.

99. See Costello-Roberts v United Kingdom Series A, No 247–C, Judgment of 25 March 1993, ECtHR; A v United Kingdom Judgment of 23 Sept 1998, ECtHR; Harris, O'Boyle and Warbrick, above n 18, pp 19–22.

100. During the committee stage in the House of Lords, Lord Irvine LC and Lord Lester appeared to think that the case law on judicial review would not be directly in point, but that courts would build up principles on a case-by-case basis as they had already done in relation to judicial review: HL Official Report, 1997 24 November, vol 583, cols 784 and 796 (Lord Irvine) and 792-793 (Lord Lester). In the House of Commons, the Home Secretary, Mr Straw, adopted the approach set out in the text, and indicated that it had the support of the Cabinet. The Strasbourg case law would provide a minimum line, and other bodies which are subject to judicial review in the UK on the principles established in cases such as R v Panel on Take-overs and Mergers, ex p Datafin plc (1987) QB 815, CA, would also be subject to the obligation to comply with Convention rights: HC Official Report, 1998 17 June, vol 314, cols 406–408. Mr Straw said of the case law on judicial review (at col 409): ‘It is not easily summarised and could not have been simply written into the Bill, but the concepts are reasonably clear and I think that we can build on them.

101. Human Rights Act 1998, s 6(3)(b) and (5).

102. See eg Dombo Beheer BV v Netherlands Series A, No 274, Judgment of 27 October 1993 (civil proceedings); Bönisch v Austria Series A, No 92, Judgment of 6 May 1985 (criminal proceedings); Feldbrugge v Netherlands Series A, No 99, Judgment of 29 May 1986 (administrative proceedings).

103. (1983) 2 AC 237, HL.

104. See Wandsworth LBC v Winder (1985) AC 461, HL; Boddington v British Transport Police (1998) 2 All ER 203, HL; C Emery, ‘The vires defence - ultra vires as a defence to civil or criminal proceedings (1992) CLJ 308–348; A Tanney, ’Procedural exclusivity in administrative law (1994) PL 51–68.

105. See eg Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992) 1 AC 624, HL; Hazel1 v Hammersmith and Fulham London BC (1992) 2 AC 1, HL.

106. J W F Allison A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Clarendon Press, 1996) esp ch 5 and pp 180–181.

107. Human Rights Act 1998, s 6(3)(a).

108. See G S Morris ‘The Human Rights Act and the public/private divide in employment law (1998) ILJ 293–308.

109. Kentridge above n 23, p 70.

110. Sir W Wade QC ‘Human rights and the judiciary (1998) EHRLR 520-533 at 524–525; M Hunt ’The “horizontal effect” of the Human Rights Act (1998) PL 423-443.

111. This prospect was foreseen (but not welcomed) by Lord, Wakeham and Lord, Wilberforce During the committee stage of the Bill in the House of Lords: HL Official Report, 1997 24 November, vol 583 Google Scholar, cols 771–774 and 781–782 respectively.

112. Tinnelly & Sons Ltd and McElduff v United Kingdom ECtHR, Judgment of 10 July 1998, Reports 1998-IV, No 79, p 1633, holding that in certain circumstances conclusive certificates on questions of fact, issued by a minister in relation to national security matters, deprive litigants of a fair hearing and violate art 6(1). It is likely that the same applies to public interest immunity (PII) certificates and other PII claims where the impact is disproportionate to the object of allowing the claims.

113. See Osman v United Kingdom (1998) BHRC 293, ECtHR.

114. For a recent manifestation of equality before the law operating as a restriction on differential extension of tort liability for psychological harm, see White v Chief Constable of the South Yorkshire Police (1999) 1 All ER 1 at 45.48, per Lord Hoffmann: … such an extension would be unacceptable to the ordinary person because it would offend against his notions of distributive justice. Lord Browne-Wilkinson and Lord Steyn agreed (at 4, 39), and Lord Griffiths made a similar point (at 6). Lord Goff dissented.

115. See L Lustgarten and I Leigh In from the Cold: National Security and Parliamentary Democracy (Oxford: Clarendon Press, 1994) pp 321–330; Feldman, above n 83, pp 130–136.

116. Human Rights Act 1998, s 8(1), (2), (6).

117. (1993) QB 727, CA, subsequently overruled by a majority of the House of Lords (Lord Cooke of Thomdon dissenting) in Hunter v Canary Wharf Ltd (1997) AC 655, HL.

118. (1997) AC 655, HL.

119. (1995) 1 WLR 1372, CA.

120. N Addison and T Lawson-Cruttenden Harassment Law & Practice (London: Blackstone Press, 1998) p 5, referring to the speeches of Lords Goff, Hoffmann, Lloyd of Berwick and Cooke of Thorndon.

121. See Rantzen v Mirror Group Newspapers (1986) Ltd (1994) QB 610, CA; John v MGN Ltd (1997) QB 586, CA; Tolstoy-Miloslavsky, v United Kingdom Judgment of 13 July 1995, Series A, No 316-B, ECtHR.

122. See Bendenoun v France Series A, No 284, Judgment of 24 February 1994; McMichael v United Kingdom Series A, No 307-B, Judgment of 24 February 1995.

123. Tinnelly & Sons Ltd and McElduff v United Kingdom Judgment of 10 July 1998, Reports 1998-IV, No 79, p 1633, ECtHR.

124. Judgment of 23 Sept 1998, ECtHR.

125. Series A, No 91 (1985), ECtHR.

126. Human Rights Act 1998, s 9(3).

127. Human Rights Act 1998, Sch 1, Pt I, art 5(5).

128. Human Rights Act 1998, s 9(1), (2).

129. R v Bow Street Metropolitan Magistrate, exp Pinochet Ugarte (No 2) (1999) 2 WLR 212, HL, setting aside R v Bow Street Stipendiary Magistrate, ex p Pinochet Ugarte (Amnesty International and others intervening) (1998) 3 WLR 1456, HL.