The Rule of Law and the Human Rights Act

Exam Monday groups: April 9th Tuesday groups: April 3rd You must come to the correct class: if you do not, you may not be able to do the exam. Units 1 to 6 “Facts” and “Vocabulary” sections, plus cases / issues studied in class.

I: The rule of law

The rule of law Key constitutional principle, alongside parliamentary sovereignty A.V. Dicey in An Introduction to the Study of the Law of the Constitution (1885), defined three pillars of the rule of law: 1) “The Supremacy of regular law as opposed to the influence of arbitrary power.” i.e. the rule of law and not the rule of man 2) No man is above the law 3) “The right to individual liberty is part of the constitution because it is secured by the decisions of courts.” Individual rights are secured by the judiciary The rule of law is a key constitutional principle in English law, alongside parliamentary sovereignty The term was popularised by the constitutional scholar AV Dicey in his book, An Introduction to the Study of the Law of the Constitution (1885). In this book he defined three pillars of the rule of law. Firstly it required “The Supremacy of regular law as opposed to the influence of arbitrary power.” This means that No one can be punished except for a breach of law established using correct legal procedure before the ordinary courts of the land Another way of saying this is that there must be i.e. the rule of law and not the rule of man Secondly, No man is above the law : this means that all men are subject to the same law administered in the same courts Finally, according to Dicey““The right to individual liberty is part of the constitution because it is secured by the decisions of courts.” Individual rights are secured by the judiciary. This underlines the role of the judiciary in establishing and protecting rights through court decisions and procedures such as judicial review.

The rule of law Implies that the legal system must be fair, rational, predictable, consistent and impartial. Implies that the legal system must be fair, rational, predictable, consistent and impartial. < clearly relates to many of the issues we have looked at this semester. Which ones? Legal aid / Access to justice /online courts/ rise of ADR Divorce, prenups and financial settlements > predictability Magistrates > predictable and impartial? Surrogacy > laws which are not clear, force judges to grant parental orders to babies resulting from commercial surrogacy abroad even though this is supposed to be illegal

II: The rule of law and human rights In the second section we will consider the rule of law and human rights

The roots of liberty in the UK Historically, the establishment of the rule of law went alongside increasing protection of rights and freedoms C12: the first use of writs pertaining to habeas corpus Magna carta (1215): established the principle that everyone, including the king, was subject to the law; gave all ‘free men’ the right to justice and a fair trial The Bill of Rights (1689): insisted on the primacy of Parliament required due process in criminal trials prohibited of cruel and unusual punishment When we look at English history, we see that, over time, the establishment of the rule of law went alongside increasing protection of rights and freedoms C12: the first use of writs pertaining to habeas corpus: means for someone who is being detained unlawfully to challenge his detention before a court Magna carta (1215): established the principle that everyone, including the king, was subject to the law; and at the same time gave all ‘free men’ the right to justice and a fair trial. Although very of its provisions are still part of English law, it remains a symbolic cornerstone of the constitution. The Bill of Rights signed (1689): insisted on the primacy of Parliament and further limited the monarch’s powers, but also established important rights, including Requirement of due process in criminal trials prohibition of cruel and unusual punishment

The roots of liberty in the UK Writers such as John Locke and Thomas Paine contributed to the development of a philosophy of human rights. However, while other countries drafted constitutions enumerating citizens’ rights, in the UK rights developed incrementally through court decisions No single document enumerated the rights of UK residents English Writers such as John Locke and Thomas Paine contributed to the development of a philosophy of human rights. However, whilst other countries drafted constitutions which enumerated citizens’ rights, in the UK rights developed incrementally through court decisions traditionally it was said that UK citizens had the freedom to do anything not forbidden by the common law, this is less powerful than a clearly enumerated list of rights No single document enumerated the rights of UK residents

The European Convention on Human Rights Following the Second World War, the Council of Europe created the European Convention on Human Rights (ECHR), based on the UN Declaration of Human Rights The UK ratified the Convention in 1951 The European Court of Human Rights (ECtHR) was established in 1959 From 1966 UK citizens who believed that that their ECHR rights had been breached could petition the ECtHR However, before 1998 UK citizens could not bring claims relating to breaches of ECHR rights before British courts Following the Second World War, the Council of Europe created the European Convention on Human Rights (ECHR), based on the UN Declaration of Human Rights The UK ratified the Convention in 1951, and as you know it came into effect in 1953 The European Court of Human Rights (ECtHR) was established in 1959 from 1966 UK citizens who believed that that their ECHR rights had been breached could petition the ECtHR in Strasbourg. The problem was that this was time-consuming and expensive However, before 1998: UK citizens could not bring claims relating to breaches of ECHR rights before British courts

The Human Rights Act (1998) In 1998, the Human Rights Act enacted the provisions of the ECHR in UK law Made it unlawful for a public authority to act in way incompatible with a Convention right. Made a remedy for breach of a Convention right available in UK courts Claims can still be brought before the ECtHR, if all domestic remedies have been exhausted. To resolve this problem, In 1998, Tony Blair’s lAbour Govt passed the Human Rights Act, which enacted the provisions of the ECHR in English law Made it unlawful for a public authority to act in way incompatible with a Convention right. Public authority includes persons or bodies whose functions are functions of a public nature. Include central and local government, the police and prison services, and it can be private bodies contracted to perform work usually carried out by gov – privately run prisons It also includes courts and tribunals, On a practical level, Because these rights were now part of English law, they made a remedy for breach of a Convention right available in UK courts Claims can still be brought before the ECtHR, but only if all domestic remedies have been exhausted. > no more appeals are possible in the UK courts

Article 2 The right to life Article 3 Freedom from torture, and inhuman treatment or punishment Article 4 Freedom from slavery and forced or compulsory labour Article 5 The right to personal liberty Article 6 The right to a fair trial (i.e. due process) Article 7 Freedom from retrospective criminal law (ex post facto law) Article 8 The right to respect for private life, home and correspondence Article 9 Freedom of thought, conscience and religion Article 10 Freedom of expression (including parliamentary privilege) Article 11 Freedom of peaceful association and association Article 12 The right to marry and found a family Article 14 Prohibition of discrimination Articles 1-3 of the First Protocol Protection of property, right to education, right to free elections Article 1 of the Thirteenth Protocol Abolition of the death penalty Has had a significant effect on Uk law, some areas such as priovacy have debeloped significantly, but in all areas rights have been clarified and strengthed

Statutory interpretation and the HRA Courts have a duty to interpret legislation in a way compatible with convention rights “so far as it is possible to do so”. This can mean courts going against the actual meaning of the statute. Ghaidan v. Godin-Mendoza [2004] The Rent Act (1977) allowed spouses or those “living as husband and wife” to inherit certain tenancies. Following the HRA (1998), the House of Lords read this as extending to same sex couples. The HRA means that Past and future legislation should be compatible with convention rights. This has had an impact on how the courts interpret statutes. Courts have a duty to interpret existing legislation in a way compatible with convention rights “so far as it is possible to do so”. This can mean courts going against the actual meaning of the statute. Ghaidan v. Godin-Mendoza [2004] The Rent Act (1977) allowed spouses or those “living as husband and wife” to inherit certain tenancies. In a pre-1998 case, the court had held that this meant that the couple had to be heterosexual, that was the actual, ordinary meaning of the Act That means? That this act is discriminatory in relation to same sex couples, violates Convention rights. Following the HRA (1998), when the Ghaidan case came before the court, the court had to try to read it, interpret it, in a way which would not violate Convention rights. So the House of Lords read this as extending to same sex couples. Thus they interpreted it in a way which respected Convention Rights even though that went against the ordinary meaning of the text and what P intended when it passed the Rent Act. This has been controversial > some suggesting that it allows judges to act as legislators, effectively rewriting legislations Others argue this is exactly what Parliament intended when it passed the HRA , and so the judiciary is doing exactly what Parliament has asked it to do.

Statutory interpretation and the HRA If primary legislation cannot be read consistently with Convention rights, courts must issue a Declaration of Incompatibility: does not in any way affect the validity of the provision brings it to the attention of Parliament, who may choose to modify the Act. Courts cannot set aside a provision of an Act of Parliament on the grounds that it is incompatible with Convention rights. Maintains Parliamentary sovereignty What if it’s impossible to interpret the text in way that is compatible with ECHR rights? What is the law had said “heterosexual couples living as man and life”? If primary legislation cannot be read consistently with Convention rights, courts must issue a Declaration of Incompatibility: does not in any way affect the validity of the provision > law will be applied including in the dispute before the court brings it to the attention of Parliament, who may choose to modify the Act. This is ver different to the US system, where courts can strike down laws which violate the BOR It means that, courts cannot set aside a provision of an Act of Parliament on the grounds that it is incompatible with Convention rights > This approach maintains the principle of Parliamentary Sovereignty

Precedents and the HRA (1998) Courts and tribunals must take into account ECtHR judgments and opinions. This allows over-ruling of previous English case authority which is in conflict with a decision of the ECtHR. Means that Courts and tribunals must take into account ECtHR judgments and opinions when making decisions This allows over-ruling of previous English case authority which is in conflict with a decision of the ECtHR. However, should kniow that technically UK courts are not bound by ECt decisions when deciding cases under the HRA. (Don’t say - if precedent violates ECHR, must give effect to Convention-compatible decision of ECHR)

Criticisms The HRA gives too much power to judges at the expense of Parliament. It prioritises individual rights over the collective good. Although the HRA has strengthened the Rule of Law, a future Parliament could repeal it. The UK needs a written constitution to safeguard human rights. Gives too much power to judges at the expense of Parliament.> damaged the rule of law by giving judges too much power Emphasises individual rights rather than the collective good. From the other side of the debate there are those who think it does not go far enough. Although the HRA has strengthened the Rule of Law, a future Parliament could repeal it. The UK needs a written constitution to safeguard human rights.