The Need for Reformation of the Current Law and the Bill of Rights

This essay will evaluate the proposals that the Conservative Government put forward in 2015. The proposals were about repealing the Human Rights Act 1998 (HRA) and giving a Supreme domestic court the power to make decisions on human right issues. This would be done by creating a ‘Bill of Rights’ and breaking the link between British courts and the European Court of Human Rights. This will involve considering what the current law is and whether it needs changing, by showing where the law has helped individuals and when it has caused problems. This shows why creating a bill of rights is a good or a bad idea and other ideas for reform.

The HRA was passed to incorporate the European Convention of Human Rights (ECHR) into UK law to protect individuals’ human rights and liberties, this is done by various sections telling the courts how to do this. The ECHR is a treaty developed in 1953 by group of nations to protect individuals and to make sure the atrocities that happened do not again, it requires the signatory states to give effect to the legislation which the UK decided to implement 50 years later. The main operative mechanisms which create the link between the UK courts and the European Court of Human Rights (ECtHR) in Strasbourg are s.2, s.3, s.4 and s.10.

The main operative mechanism creating the link between the Strasbourg court and the British courts is s.2 which says domestic courts must give effect to substantive Convention rights and to the jurisprudence of the ECtHR. An example of the domestic courts doing this can be seen in Anderson where the Home Secretary interfered and set a tariff for the mandatory life sentence, this was incompatible with article 6, the right to a fair trial. The House of Lords recognised this by allowing the appeal, this is a good example of the courts giving effect to the ECHR, due to it protecting the individual’s rights, therefore repealing the HRA would not have given this person a fair trial. As s.2 says a court ‘must take into account’ relevant jurisprudence, the document wants a separate Supreme domestic court which is also what Ullah says they should follow any clear and constant jurisprudence from Strasbourg. In Pinnock the Supreme Court says the Strasbourg case law was unambiguous and consistent, this means it right for British courts to follow it, so they think that the Strasbourg Court being supreme is more important. 

By repealing the HRA they would be disposing of S.3 which says courts are required to read and give effect to both primary and secondary legislation in a manner compatible with Convention rights ‘so far as is it possible to do so’. The courts have stretched this meaning as Fenwick says, ‘the word ‘possible’ in S.3(1) related to matters ranging well beyond linguistic possibility’. This can be seen in R v A which is about sexual history when the offence of rape is involved, the issue was whether s41(3) of the Youth Justice and Criminal Evidence Act where sexual history can only be raised in certain circumstances. The House of Lords (HL) interpreted this to mean the complainants sexual history had to be heard in court where directly relevant, parliament wanted this act to protect people, however due to the broad interpretation to try to make it compatible with the ECHR the interpretation has gone against parliaments intention and still does not protect their rights very well. In Sheldrake, a driving offence, where they reverse the burden of proof, they stretched the legislation, so they found it compatible to the ECHR as found article 6 to not be relevant.

However, there are cases where they cannot stretch this such as Ghaidan where they go too far. The Court of Appeal found that Sched 1, para 2 of the Rent Act 1997 was incompatible with article 8, the right to a private and family life, with 14, protection from discrimination, but it could be remedied if ‘as his or her wife or husband’ in sched 1 meant ‘as if they were his or her wife or husband’. The HL agreed and used the HRA to avoid discrimination against homosexuals, so they had the same rights to tenancies. If Parliament wanted to include this they would have, so having a bill of rights would mean parliament would be supreme, however having the ECHR protects peoples’ rights so repealing it would give people less protection. 

Without repealing the HRA, parliament can still have the supreme decision, due to the fact that if an act cannot be made compatible with the ECHR then under S.4 the courts can make a declaration of incompatibility, if it is satisfied that the provision is incompatible with a Convention right. The Supreme court, Court of Appeal and certain divisions of the High Court are the only courts that can make this declaration, they can make this declaration against primary legislation and secondary legislation gets treated as ineffective ‘unless the primary legislation prevents the removal of the incompatibility’. As this does not strike down the offending provision then parliament gets choice whether they want to amend the legislation, which means they get the final decision, if a new court was created to deal with this, parliament would have less control, but this could save them time. As the UK has an uncodified constitution our courts do not have the power compared to other countries who have a codified constitution, such as France where the legislation would be struck down as unconstitutional, therefore if they repeal the HRA the courts could have more power due to being able to apply the convention how they see fit.

According to Kavanagh a reason why judges may not want to issue a declaration of incompatibility is that parliament will not reform the law in a compatible way. An example where the courts have issued a declaration can be seen in MHRT where someone was detained under the Mental Health Act 1983 and they wanted to challenge by showing the reasons they were detained were wrong, this is a reversed burden of proof. However, as they were detained it was impossible for them to fulfil this, so a declaration was made as the act was incompatible with article 6. However, if a court was created in Britain specifically for this then people may feel their rights are being protected due to Britain having the final say over the ECtHR.

If a declaration gets made then under s.10 a fast track amendment can be made, where the amendment does not go through the usual scrutiny of parliament or the HL. This is done by notice being given to the crown and the relevant minister then the minister will have the power to amend the legislation. This can be both an advantage and a disadvantage as gives the power to parliament as they get the final decision, but they may not amend it in a way that is compatible with the rights. This can be seen in A v Others where a declaration of incompatibility was made against part 4 of the Anti-Terrorism and Crime Act 2001 as it allowed the detainment indefinitely of a foreign national suspected of being involved in terrorist activities. This is incompatible with both article 6 and 14. When they amended this legislation, they changed it to a British national, so it was no longer discrimination, yet the legislation was still incompatible with article 6. So, having a separate court that would have this power would be beneficial as could deal with all the rights, as David Cameron says ‘[we] will replace the HRA with British Bill of Rights that better protects both our security and our freedom’, creating a new court would do this.

Many academics have given views for how they should reform the law such as having ‘a ‘notwithstanding’ clause for the BBoR…the clause could state that subsequent legislation would only override the Convention if the intention of doing so was expressly stated’. Another view is if the Bill of rights does happen ‘forward it may be better to prepare the ground for a deeper and wider constitutional dialogue across these islands than stumble clumsily and divisively into this territory simply via 'another' UK Bill of Rights.’

Overall, government should not break the link between the courts as Strasbourg court is consistent and s.2 allows the UK to easily follow this. Also, s.10 allows parliament to amend legislation that is inconsistent which gives them supremacy so they should not repeal the act. However, s.3 and s.4 shows courts can be reluctant in issuing a declaration of incompatibility so they stretch the legislation which leads to peoples’ rights being broken so the HRA should be repealed. I think the HRA should not be repealed and government should not break the link as I think our rights are protected through it.