'The Human Rights Act 1998 has a significant impact on administrative law in the UK. It has added legal rules on standing and new grounds upon which exercise of public powers can be challenged in judicial review proceedings. More importantly, however, it has given rise to new human rights culture in the UK. ' Critically discuss all aspects of the statement.
When speaking of human rights of the individual we often refer on one hand to social and economic rights such as the right to employment, health care and housing and on the other hand the classical civil and political rights -the right to liberty of the person, participate in elections, rights to freedom of conscience and religion and expression. Human rights lawyers concentrate particularly on the civil and political rights even though social and economic rights are essential to the 'effective participation in the civil and political life of the community.
'Several international treaties promoting social and economic security have failed to penetrate into common law tradition and be taken seriously as fundamental rights as a result of their difficulty to enforce. However, The European Convention on Human Rights (ECHR) has had a significant influence on British law and practice. 2 The Labour Party's manifesto prior to the 1997 elections included the commitment to introduce legislation, which would incorporate the ECHR into United Kingdom (UK) law.
The Prime Minister's vision to modernise British politics issued a consultation paper proposing incorporation to 'enable people to invoke their rights in any proceedings, civil or criminal brought against them by a public authority. 3 The enactment of the Human Rights Bill 1998 on 2 October 2000 and the incorporation of the ECHR United Kingdom law marked a turning point in the UK's legal and constitutional history. This new epoch has brought about greater domestic respect for human rights under the rule of law, resulting in significant changes in Public law, both in substance and in the conduct of judicial review proceedings.
4 The general purpose of the Human Rights Act (HRA) 1998 is to allow everyone within the UK to seek redress in British Courts for breaches of their Convention rights committed by public authorities. This however, does not include either the House of Parliament or a person exercising functions in connection with proceedings in Parliament. The key issue for discussion is that although, citizens of the UK are able to challenge public bodies for infringements of their human rights stringent limitations are imposed on the public's power to exercise their rights in judicial review proceedings.
5 Limitations include for example, time restrictions by which claims must be made if they are to be considered for judicial review. These limitations seem to be in place to act as a control mechanism for the number of claims that are brought forward for judicial review. Without such instruments the volume of claimants would soar placing a huge strain on the law courts both economically and in regards to time.
Under section 6 of the HRA 'public authority' is defined flexibly expressly including courts and tribunals and any person certain of whose functions are functions of a public nature. This according to Geoffrey Marshall is 'carrying vagueness to the extreme lengths. '6 Lord Simon of Glaisdale proposed an amendment to clarify this 'vagueness' of the term "public authority" by defining it as "any person concerned with the provision to the public (whether payment or otherwise) of any goods, facilities or services.
" This would have made every window cleaner, newsagent and striptease artiste a public authority so this was happily withdrawn. 7 Public authorities must abide by the Convention and take into account as necessary the Strasbourg jurisprudence on the scope and application of Convention rights. In doing so, section 6 of the Act creates a statutory duty to abide by the Convention. Its breach will allow a judicial review court to award damages or compensation in appropriate cases.
However, perusal of clause 6(2) of the HRA Bill shows that this statement is subject to serious qualification. It will both be unlawful for a public authority to act incompatibly with Convention rights if the public authority is acting do as to give effect to primary legislation, which is clearly incompatible with the Convention. With regard to courts the HRA 1998 has significantly affected statutory interpretation. The Act provides the courts with the authority and duty to interpret and apply legislation in a way that meets the UK's ECHR obligations.
8 Although, the Act does not enable courts to strike down legislation which is incompatible with the Convention, clause 3 requires the courts to read legislation in a way that 'so far as possible' gives effect to the Convention rights. 9 Using the test on what is 'possible' rather than 'reasonable' courts and tribunals will strive where ever possible to interpret legislation compatibly with the Convention rights by reading in the necessary safeguards to ensure fairness, proportionality and legal certainty as requires by the Convention.
10 In judicial review action the administrative court has powers to rule upon the legality of the exercise of public powers 'if proceedings are brought on an application for judicial review it is a claim which seeks to review the unlawfulness of the enactment or a decision, action or failure to act in relation to the exercise of a public function. '11 Clayton and Tomlinson argue that since section 7(3) of the HRA uses the word 'if proceedings' this implies that the bringing of such proceedings is optional.
12 However, in circumstances of a claim that a judicial act infringes a Convention right, section 9 of the HRA requires that proceedings must be brought by way of appeal or judicial review. 13 This was illustrated in the case of O'reilly v. Mackman14. Here, four prisoners from Hull Prison participated in a prison riot and subsequently charged with disciplinary offences.
Three of the prisoners brought actions against the Prison Board by writ in the Queen's Bench Division alleging that it had acted in breach of the Prison Rules and the rules of natural justice. The fourth plaintiff started similar proceedings and the judge dismissed the application. The decision was reversed by the Court of Appeal, which struck out the proceedings on the ground that they were an abuse of the process of the court and that the plaintiff's only proper remedy was by way of judicial review under the legal Rules of the Supreme Court Order.
The decision was held since all remedies for the infringement of rights protected by the public law could be obtained on an application for judicial review, as a general rule, it would be contrary to public authority's infringement of his public law rights to seek redress by ordinary action. Accordingly, the decision was struck out as they raised public law issues, which should have been challenged by way of judicial review.
Specific procedural rules and practices for the claim for judicial review have been established within the Practice Directions of the Civil Procedure Rules (CPR) Part 54 and Section 31 of the Supreme Court Act which are in place primarily to safeguard the interests of public authorities. These procedures provide certainty for public bodies from public powers being used excessively and bringing forward to the courts 'frivolous' claims. 16 The case of O'reily v Mackman established the 'exclusivity principle,' which requires that litigants should not be able to avoid using judicial review by way of writ or originating summons.
The exclusivity principle raises a number of issues including the drawback for applicants who cannot benefit from the procedural advantages of bringing an action by way of writ or originating summons. Under the CPR, replacing the procedure under section 31(3) of the Supreme Court Act 1981, judicial review requires permission17 and around half of the judicial review actions fail at the permission stage. 18 This permission requirement stage therefore is controversial and has evoked severe criticism over its effectiveness for the public to be able to exercise their powers and challenge public bodies.
Lord Lester of Herne QC however adopts a strong viewpoint in favour of the permission stage to apply for judicial review arguing that it is needed to 'safeguard public authorities against any abuse of judicial review by interfering busybodies. '19 Moreover, action brought under section 6 of the HRA 1998 by judicial review must be done so in no later than three months from the date when the grounds for the application arose. 20 The court may extend time to one year if there is a good reason to do so, but the parties may not agree to extend time.
Under Act 1981 section 31(6), the court may refuse to grant leave for an application or may refuse to grant relief sought by the claimant if it considers that granting of the relief 'would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. '21 Whether extended time is granted is left to the discretion of the judge, which perhaps may allow for subjective opinion to impinge on the decision.
Lord Woolf in an article published by the Guardian Newspapers on the success of the HRA Act announced that, "the HRA has strengthened our democracy by giving each member of the public the right to seek the help of courts to protect his or her human rights in a manner that was not previously available. "22 The protection of individual rights appears to have created a human rights culture within the UK. Relatively recent newspaper publications have demonstrated this. For example, The Observer produced an article explaining how parents could soon have the right to choose the colour of their baby's hair and eye.
Legal experts say this practice currently banned by the Human Fertilisation and Embryology Authority (HEFA) may be over turned. The HRA could allow parents to challenge the HEFA on the ground that the HRA declares that public bodies should not interfere with the privacy of family life unless they can justify it in terms if protecting public health or morals, or protecting the rights of others. 23 It appears that the HEFA would have to prove its right to infringe an articulate quite precisely why it believes it is wrong to have the right to select the appearance of their babies born through invitro fertilisation.
This directly refutes the aim of the HRA, which is that individuals must present their case to establish that there was an infringement of their rights by a public body. Here, the public body is defending their rights in relation to what is in the best interest of public health. A further example also cited in the Observer is the case of Diane Prety who had motor neurone disease and launched a 'right to die' campaign arguing that the law, that treats her husband as a murderer if he helps to end her life at her request, violated her right to freedom from inhuman and degrading treatment.
24 It perhaps seems that the human rights of individuals are being upheld at the expense of society. Conclusively, Dawn Oliver points to a 'textual anchor,' which judges now have in the form of the ECHR applied domestically under the HRA. Previously it was persuasively argued that under the traditional view of the Constitution, the judges will interpret common law doctrines so that fundamental freedoms are protected. Street, in 'Freedom, the Individual and the Law' argues our judges may be relied on to defend strenuously some kinds of freedom.
Their emotions will be aroused where personal freedom is menaced by some kinds of politically unimportant area of the executive. However, there now seems to be reluctance by Parliament to protect civil liberties issues tend to be perceived as doubtful vote-winners demonstrating a civil political rights clash with public interests. This received Parliamentary wisdom has meant that measures protecting civil liberties are vulnerable to under-funding. Thus it is questionable whether the democratic process can be trusted to safeguard civil liberties of Parliamentary sovereignty.