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A critique of the Human Rights Act 1998

In the United Kingdom, the starting point of rights since over more than two decades is the Human Rights Act of 1998 (HRA). It was pioneered by the Labor Party under the stewardship of the ex-Prime Minister Tony Blair. The HRA envisaged bringing rights home by enabling local citizens to take benefit of most of the first-generation rights set out in the European Convention on Human Rights (ECHR) in domestic courts. In so doing, it reassured to remove the need to take lengthy and costly proceedings before the European Court of Human Rights (ECtHR) in Strasbourg (France). Its agenda was put into effect by copying out most of the Convention rights into the HRA, hoping it would build a culture of respect for human rights, especially among public authorities in the United Kingdom.
The HRA is divided into sections and articles. It starts off with the former and closes off with the latter. The sections have a procedural character whilst the articles are the substantive rights available to citizens. The most striking feature is section 3 of the Act as it serves as a strict direction to domestic courts to choose the meaning or interpretation of the national statute which is most consistent with the Convention rights. Basically, it offers victims the benefits of the broader jurisprudence of Strasbourg courts (something covered in section 2). But as it turns out, it leaves the scope of unequivocal piece of legislation undetermined. Importantly, it leaves the incompatible legislation valid, giving the Glorious Revolution of 1688 full support. Certainly, such an outcome is part of the notion of parliamentary supremacy that the United Kingdom adheres to. But it is disappointing to see that the efficiency of the system becomes the cause of the violation of citizen’s rights. Even though these days it is a principle of constructive interpretation that rights are always above politics (because they are in place for the welfare of citizens, and not for individual political parties to play up with) still the Act is oblivious to it. However, the straw man relief is still in place as the secondary legislation is allowed striking down under the Act unless the incompatibility is guarded by the legislation.
Besides, it is a notable aspect that the interpretation of “as far as possible” contained in s.3 has been far from easy. It has often led to differences of opinion about its scope among the judiciary. Take the very example of Ghaidan. In this case, the applicant, who was a homosexual partner, was allowed to continue with tenancy after the death of his partner only by taking the meaning of living spouses as homosexual and heterosexual partners. While in Wilkinson, the applicant, who was a widower, was denied tax benefits because the statute was feminine in tone. Thus, it comes to fore that the language of the statute is misleading as it can open up broad and narrow readings of s.3 at different times. Although Wilkinson has made it clear that the clear language of the statute cannot be subjected to Convention-compliant interpretation, it has shut the door for innovative or rights-friendly construction, sabotaging the very purpose of the Act.
Turning to section 4 of the Act, it permits the courts to pass a declaration of incompatibility if they cannot find a resolve through s.3. Like the other section, it has no effect on the validity of the Act. Instead it puts pressure on the ministers to fix the statute. Its successful application was seen in Bellinger v Bellinger when s.11 of the Martimonial Clauses Act, 1973 (which covered heterosexual marriages), could not be read to include the right of marriage for transsexuals as underpinned in Articles 8 and 12 of ECHR. The laws were subsequently changed in the Gender Recognition Act, 2004.
Notably, there are other occasions where the court has refused to issue declaration despite the incompatibility. One such example is the Chester case in which it was denied against s.3 of Representation of the People Act, 1983, even though it deprived prisoners from voting rights. One may say it is an ineffective remedy. This is better brought to light by the Belmarsh case in which no compensation was given to the victims of wrong detention neither they were released. Hence the only way in which one can think of it as beneficial is its reading with section 10 of the Act. Under it, the acting minister can make adjustments to the statutory language after the court declaration. But there is no way it will make the nagging law redundant.
Besides, there is another hurdle, for a successful claim, the claimant has to be a victim within the meaning of section 7 of the Act. Much more, the Act does not deter the sponsoring minister from introducing a bill against Convention. After all, at the most, section 19 of the Act requires a statement by the minister confirming or denying its compatibility. There is no mechanism to stop the Parliament from making Convention-contrary laws. The wisdom behind this scheme of things is security of parliamentary supremacy.
Additionally, section 6 of the Act puts a duty on public authorities to uphold Convention rights covering their actions and inactions. The body is a public functionary under the scheme of the Act only if it exercises a governmental function something pointed out in Aston Cantlow case.
Above all, sometimes the court has to deal with a novel situation. For example, in Campbell, the court had to toss between two Convention rights. The applicant Campbell, who was a celebrity, argued that her right to privacy under Article 8 of the Convention had been violated. While the newspaper agency, i.e. MGN submitted that it leaked out the information staying within the ambit of freedom of expression covered in Article 10. The Court concluded that the newspaper agency owed a duty of care to Campbell and they should not have disclosed any such information which she expected to be kept private. Since Campbell expected that her drug history and rehabilitation was not made public, therefore MGN went beyond its limits and breached Article 8.
In sum, it can be said that HRA is not a revolutionary charter of rights because it denies citizens every possibility of invalidating statute usurping rights.

The author teaches jurisprudence and legal theory at Pakistan College of Law, Lahore. She can be contacted at: mavi_rajput@hotmail.com

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