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Human Rights Act 1998

What impact did the European Convention on Human Rights have on UK
law prior to the enactment of the Human Rights Act 1998? What
differences has that Act made to the situation with respect to substantive
rights? Or since the HR came in force from 2000, how it impact on UKs
law?
European Convention of Human Rights:
ECHR is an international treaty to protect human rights and fundamental freedoms
in Europe which was drafted in 1950 by the Council of Europe. The Convention
established the European Court of Human Rights, where any person who feels his or
her rights have been violated under Convention by a state party, he or she can take
a case to the court. In other words, ECHR came into existence in 1950, the
convention rights means, rights and fundamental freedom which was sponsored
by the council of European which has been drafted and intended to extend the
same civil liberties which existed in UK to other European states. Prior to the
enactment of the Human Rights Act 1998, the European Convention was directly
relevant to statutory interpretation because it could not be a source of rights and
unless a statute was ambiguous, it could not be used for statutory interpretation.
For example:
R v Secretary of State for the Home Department ex p. Brind [1991]
The Secretary of State made orders under the Broadcasting Act 1981 banning
television and radio stations from broadcasting the words spoken by spokesmen of
organisations proscribed under anti-terrorism legislation. Broadcasters sought
judicial review as ban was disproportionate to its ostensible object of preventing
intimidation by the organisation concerned. Dismissed.
International treaty obligations may provide guidance when a court is called upon
to interpret an ambiguous/unclear statute. Also, this case involves the concerns of
breach of convention for judicial review at European Court. Indirect effect.
Human Rights 1998, effect on 2nd October 2000.
(Prior)
The UK lacks a written constitution and Bill of Rights, thus, one cannot speak of
constitutional rights. In other words, since UK does not have a constitution which
can guarantees ones right, he instead enjoy freedom under the law/ enjoy civil
liberties instead of constitutional rights. In the absence of a written constitution and
a Bill of rights, individuals Human rights were protected by the courts, Parliament
and the democratic process, including public support and opinion.
According to Dicey, he distinguished the British method from other countries by
stating that British constitution was not eh source but the consequence of the rights
of individuals, as explained by the common law courts. Therefore, individual rights
resulted from court decisions, applying the traditional private law to which all were
subject, including the government.
For example:
Entick v Carrington (1765)
Two kings messengers, acting under a warrant issued by the secretary of state,
broke into the claimants house and carried of his papers, regarding some
investigation into certain seditious articles. The C sued the messengers for trespass.

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The judges upheld the rule of law by denying that the Crown, the government could
enter and search the premises of a political opponent on the basis of a general
warrant for there was no legal authority.
The executive cannot lawfully assume powers which are not known to the courts.

Since the Human Rights 1998 came into effect:

The Human Rights Act 1998 came into effect on 2 nd October 2000 and while it does
not strictly incorporate/join the European Convention into domestic law, it allows the
courts to give further effect to the convention and to take convention rights and
case law into account when interpreting and developing domestic law. Thus,
individuals can now rely Directly on Convention rights in the domestic courts.
Prior to the Act, the court could only give indirect effect to the Convention and they
could not apply Convention rights where the domestic law did not recognise that
right. For example:
Indirect effect: R v Home Secretary, ex p. Brind [1991]
Could not apply Convention Rights: Malone v Metropolitan Police
Commissioner [1979]: The C was charged with handling stolen goods. At his trial,
the prosecution admitted that his Telephone had been tapped under a warrant from
the Home Secretary and his conversations recorded. He brought proceedings
against the HS for a declaration that the phone tapping was unlawful.
The State does not need express authority for its actions if they do not common law
or statute. No statute authorise phone tapping with or without a warrant, which did
not mean tapping was unlawful. But a search of premises which was not authorised
by the law was illegal, tort of trespass. No trespass on tapping.
The Human Rights Act 1998 improves the traditional method of protecting
civil liberties. Thus, the courts can still apply traditional constitutional principles
such as the presumption of innocence, the control of arbitrary power and the rules
of natural justice. However, the doctrine of parliamentary sovereignty is retained
such as the courts still cannot refuse to recognise an Act of Parliament and
Parliament retains the right to pass incompatible legislation.
Prior to the HRA 1998, the courts, Parliament were protecting civil
liberties such as
Courts: through the formal procedure of judicial review, the courts could safeguard
against arbitrary and unreasonable interference with human rights. For example:
Interpret legislation in the light of constitutional fundamentals, ensuring a
human rights friendly interpretation.
Waddington v Miah [1974]
Apply the principles of natural justice to ensure a fair and impartial hearing.
Ridge v Baldwin [1964]
Parliament: Parliament could pass legislation securing the rights and freedoms of
its citizens.
Magna Carta, The bill of Rights 1688, Habeas Corpus, are some examples which
were taken into force to protect individuals liberties against the arbitrary power
prior to the HRA 1998. However, some importance ones are:
The Police and Criminal Evidence Act 1984 provides safeguards against
arbitrary police powers with respect to arrest, detention and search and entry.

However, Acts of Parliament could take away or interfere with rights without
challenge from the courts on human rights grounds. (The Public Order Act
1986 contained restrictions on the right to peaceful protest.)

The concern of the traditional system of protecting Human Rights:

The common law courts did not recognize all rights such as right of privacy,
Malone v Metropolitan Police Commissioner [1979] (where the
European Court held that unregulated telephone tapping was
conflicting/contrary to the right to private life and correspondence under
Article 8 of the Convention.
The courts were powerless to challenge primary legislation which violated
individual rights. Rossminster Ltd (1980)
The courts could not take the European Convention on Human Rights into
account as a direct source of rights. , Malone v Metropolitan Police
Commissioner [1979]
Acts of Parliament enjoyed sovereignty and could not be questioned by the
courts.
The reason for passing the Human Rights Act 1998 and the Aims and
Provisions/necessities of the Act:
The UK was a signatory of the ECHR from the beginning in 1950 and it granted its
population the right of individual petition in 1966. However, the ECHR is
international law. As it is not part of the law of the UK, and could not be directly
enforced before the UKs court. There was a growing sense that in certain areas UK
law was failing to secure and keep pace with emerging international standards of
human rights protection such as the ECHR or the international Covenant on Civil
and Political Rights (ICCPR). Another reason for introducing human rights protection
related to the ability of UK law to control effectively the exercise of the state power.
In 1980s, a serious disturbance was met by significant legislative response, such as
the Police and Criminal Evidence Act 1984, the Public Order Act 1986, the Official
Secrets Act 1989 and the Criminal Justice and Public Order Act 1994. This created a
significant body of opinion concerned that traditional civil liberties were under
threat and that some form of legally enforceable for human rights was necessary.
Identification of convention rights: the purpose of the Act is to give further
effect to the rights and freedoms in the ECHR. It makes no attempt to add to or
modify the provisions of the conventions. The traditional human rights protection of
the convention is adopted into UK law.
HRA 1998 has to be taken into consideration, though it is not the same as a Bill of
Rights, but since it became law in October 2000, it had significant impact on UKs
law, because it allows aggrieved/ distress individuals to challenge the conduct of
public authorities on the grounds that such conduct violates the rights contained in
European Convention on Human Rights. Furthermore, the passing of HRA 1998 also
intended to rectify/correct the concerns of the traditional system of protecting civil
liberties and to allow the domestic courts to directly apply Convention principles
and case law. Thus, improving UKs Human Rights record in Strasbourg and reducing
the need for citizens to seek the assistance of the European Court. The basis aim of
the Act is to bring the European Convention rights home to domestic law and

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allow its provisions to be applied in the domestic courts. This means that individuals
will not in most case be required to use the Convention machinery in Strasbourg.
The Human Rights Act 1998 appears to be having a significant and positive effect
on the development of civil liberties in the UK. Considering the area of Public order/
Freedom of Assembly.
For example: Prior to Human Rights 1998, the Public Order Acts 1936 and
1986, and Criminal Justice and Public Order Act 1994, contained a large
number of provisions, restricting Freedom of Assembly and creating
number of criminal offences.
Public Order Act 1936: Section 1 and 2, prohibit the wearing of political
uniforms and the maintaining, equipping/training of private armies.
For example: OMoran v DPP [1975]:
Public Order Act 1986: this is ordered into 5 parts, such as 1) Public Order
Offences. 2) Powers to deal with problems arising from processions and assemblies.
3) Prohibition of conduct likely to cause racial hatred. 4) Offences connected with
sporting events. 5) Miscellaneous offences.
Cases:
Percy v DPP [1997]
P burnt a US flag, seen by some Americans as a desecration, as part of protest
against US defence policy: her conviction was quashed as being a disproportionate
interference with freedom of expression.
DPP v Orum [1998]
A police officer may be a person who is caused harassment, alarm or distress under
s.5 (1).
The D was drank and arguing with his GF in the early hours. Two polices officers
arrived and one of them told the D to be quite. The D ask the officer to go away and
threatened to hit him. He was arrested for causing a breach of the peace and kicked
and hit the other constable as he was being put into the police car. He was then
charged under s. 5 of the POA 1986. The justice found that a police officer could not
be a person who could be caused harassment, alarm or distress and dismissed the
charged. It was question of the fact whether a police officer was a person who could
be harassment etc. this justice was wrong to find that the officer could not be such
a person.
DPP v Jones [1997]
The common law recognises that an assembly on the public highway may be lawful
thereby upholding the right to freedom of peaceful assembly contained in art 11 (1)
of the ECHR.
The D took part in a peaceful, non-obstructive assembly demanding access to the
Stonehenge site on a highway on which trespassory assemblies had been forbidden
under s 14 a of POA 1986. Magistrates convicted them of trespassory assembly. (In
this case the HL observed that it was undesirable in theory and practice for
activities on the highway to count as trespass although they were not counted as
breaches of criminal law.)

Beatty v Gillbanks (1882)

A group of person acting lawfully are not to be regarded s acting unlawfully when
others make threats to cause a breach of the peace. (Binding over order can be
imposed even if the breach of the peace has not occurred. The overriding duty of
the police and magistrates to preserve the peace justifies preventive methods to
avert disorder even if this means interfering with someone who is not about to
commit a breach of the peace)
Article 9 and 11 of Human Rights Act 1998, are the most relevant articles
convening Public order such as:
Article 9: (freedom of Religion, Thought and Conscience.) Freedom of
thought, conscience and religion, and the right to manifest ones religion or belief.
R v Taylor (Paul Simon) [2000]
Article 11: (Freedom of Association and Peaceful Assembly). Everyone has
the right to freedom of peaceful assembly and to freedom of association with
others, including the right to from and join trades unions for the protection of is
interests.
Vogt v Germany (1995)
Furthermore, the HRA 1998 enables an individual to enforce most of the rights
provided for in the European Convention of Human Rights. Section 1 (1) of the
Human Rights Act 1998 gives effect to the Convention rights contained in Arts 2 to
12 and 14 of the main Convention.
SECTION 1 OF HRA 1998-Articles:
Article 2: right to life.
R (Pretty) v DPP [2001]
Assisted Suicide: a recognising right to die or to be assisted to dies at the time of
ones own choosing. Art 2 protects the right to live with as much dignity as possible
until life reaches its natural end. Likely, in R (Purdey) v DPP [2009] the
complainant successfully challenged the DPPs refusal to state whether her husband
would be prosecuted if he helped her travel to Switzerland to have her life
terminated.
Article 3: Prohibition of torture.
R v Drew [2002]
Article 6: Fair Trial
Chahal v UK (ECHR) (1996)
Article 8: Privacy
R (Daly) v Home Sec (2001)
Article 9: Freedom of Religion
R v Taylor (Paul Simon) [2000]
Article 10: Freedom of Expression
Percy v DPP [2002]
Article 11: Freedom of Assembly and association.
RSPCC v AG [2002]
Article 14: Prohibition of discrimination

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R v Office of the Schools Adjudicator [2010]
The HRA enables an individual to enforce most of the rights provided for in the
ECHR. However, there are some requirements which an individual need to meet
before enforce.
1) Section 7 (3) HRA 1998: Claimant must be a victim.
2) Section 6 (1) HRA 1998: Unlawful conduct, which is incompatible with a
Convention rights.
3) Section 6 (3) b HRA 1998: Public Authority, define the Public authority.
The European Convention and HRA have effectively extended the available grounds
for judicial review by introducing the concept of proportionality into the English law.