The Human Rights Act 1998 Mechanism

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The Human Rights Act 1998Mechanism

• Sections 1 and 2 of the HRA 1998

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Section 1 of the HRA 1998

• It defines the Convention rights which have been
  incorporated but Art.1 (obligation of contracting
  States to secure Convention rights to everyone
  within their jurisdiction) and Art 13 (right to
  an effective remedy) are not specifically
  designed as Convention rights within Section 1.

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Section 2 of the HRA 1998

• The content and meaning of section 2
• The limits to section 2

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1. The content and meaning of section 2

• In determining a question which has arisen in
  connection with a Convention right, a domestic
  court or tribunal MUST take into account
• any judgment, decision, declaration, or advisory
  opinion of the European Court of Human Rights
• any opinion or decision of the Commission
• any decision of the Committee of Ministers
• so far as, in the opinion of the court or
  tribunal, it is relevant to the proceedings in
  which that question has arisen.

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• R (Anderson) v Secretary of State for the Home
  Department (2002), Lord Binghamthe House of
  Lords would not, without good reason,depart from
  the principles laid down in a carefully
  considered judgment of the court sitting as a
  Grand ChamberHere, there is very strong reason
  to support the decision, since it rests on a
  clear and accurate understanding of the
  tariff-fixing process and the Home Secretarys
  role in it.

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• Lord Steyn The ECHR carefully took account of
  criticisms of the reasoning in Wynne in the
  judgments in the Court of Appeal in Anderson. The
  conclusion that the reasoning in Wynne is no
  longer supportable was inevitable. Moreover, the
  effective elimination by legislation in Scotland
  and Northern Ireland of the role of the executive
  in mandatory life sentence cases was regarded as
  important. And the ECHR was rightly influenced by
  the evolution and strengthening of the principle
  of separation of powers by the executive and
  judiciary which underlies article 6 (1).

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2. The limits to section 2

• The limited impact of the Strasbourg case law
• The limited role of the judiciary in the
  definitional scope of Convention rights

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2.1. The limited impact of the Strasbourg case
law

• R v Secretary of State for the Environment,
  Transport and the Regions, ex parte Alconbury
  Developments Ltd (2001)
• Saunders v UK (1997) and Brown v Stott (2003)

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• Morris v United Kingdom (2002) and Boyd v The
  Army Prosecuting Authority (2002), Lord Bingham
  It goes without saying that any judgment of the
  European Court commands great respect, and
  section 2 (1) of the Human Rights Act 1998
  requires the House to take any such judgment into
  account, as it routinely does. They were,
  however, a large number of points in issue in
  Morris, and it did not seem clear that on this
  particular aspect the European Court did not
  receive all the help which was needed to form a
  conclusion In my opinion the rules governing the
  role of junior officers as members of
  courts-martial are in practice such as
  effectively to protect the accused against the
  risk that they might be subject to external army
  influence, as I feel sure the European Court
  would have appreciated had the position been more
  fully explained.

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• re McKeer (2004), Lord Hoffmann Under the
  Convention, the United Kingdom is bound to accept
  a judgment of the Strasbourg court as binding
  Article 46 (1). But a court adjudicating in
  litigation in the United Kingdom about a domestic
  Convention right is not bound by a decision of
  the Strasbourg court. It must take it into
  account.

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• R v Lyons (2002), Lord Millett the obligation
  placed upon the United Kingdom by article 46 of
  the Convention to abide by a judgment of the ECHR
  is an international obligation of the United
  Kingdom. It has not been incorporated into our
  domestic law so as to be directly enforceable by
  individualswhile a judgment of the ECHR is
  binding on the United Kingdom, it is not directly
  binding as a matter of our domestic law on the
  courts.

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• The Commissioner of Police for the Metropolis v
  Hurst (2005), the Court of Appeal found that
  domestic courts were bound to give full weight to
  the international obligations to be found in the
  ECHR.

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2.2. The limited role of the judiciary in the
definitional scope of Convention rights

• Re McKerr (2004), Lord Hoffmann the HRA has
  created domestic rights expressed in the same
  terms as those contained in the Convention. But
  they are domestic rights, not international
  rights. Their source is the statute, not the
  Convention. They are available against specific
  public authorities, not the United Kingdom as a
  state. And their meaning and application is a
  matter for domestic courts, not the court in
  Strasbourg.

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• R v Broadcasting Standards Commission, ex parte
  British Broadcasting Corporation (2001), Lord
  Woolf legislation may be compatible with
  Convention rights if it provides greater
  protection.

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• BUT R v Special Adjudicator, ex parte Ullah
  (2004), Lord Bingham expressed that view that it
  remains to member states to provide for rights
  more generous than those guaranteed by the
  Convention, but such provision should not be the
  product of interpretation of the Convention by
  national courts, since the meaning of the
  Convention should be uniform throughout the
  states party to it. The duty of national courts
  is to keep pace with the Strasbourg jurisprudence
  as it evolves over time no more, but certainly
  no less.

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• N v Secretary of State for the Home Department
  (2005), Lord Hope The question must always be
  whether the enlargement is one which the
  contracting parties would have accepted and
  agreed to be bound by. In his words, we must
  take the case law as we find it, not as we would
  like it to be.