The Human Rights Act 1998 Mechanism

1. The Human Rights Act 1998Mechanism Sections 1 and 2 of the HRA 1998

2. 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.

3. Section 2 of the HRA 1998 • The content and meaning of section 2 • The limits to section 2

4. 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.

5. R (Anderson) v Secretary of State for the Home Department (2002), Lord Bingham:the 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 Chamber…Here, 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 Secretary’s role in it.”

6. 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).”

7. 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

8. 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)

9. 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.”

10. 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.”

11. 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 individuals…while 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.”

12. The Commissioner of Police for the Metropolis vHurst (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.

13. 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.”

14. 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.

15. 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.”

16. 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.”