Briefly describe about advising the Government whether the proposed Bill will comply with the Human Rights Act 1998.
The present report is related with the bill that the Home Secretary wants to introduce for the purpose of amending the Terrorism Prevention and Investigation Measures Act, 2011. The proposed bill will allow the authorities to either place a person under indefinite detention or under 18 hours a day home curfew if the Home Secretary believes that such person is considering traveling to Syria. Under these circumstances, an attempt has been made in the present report to see if the proposed bill is in accordance with the provisions of the Human Rights Act, 1998. For this purpose, apart from the Human Rights Act, 1998, the European Convention on Human Rights (ECHR) as well as the relevant case law or legislation introduced after 2001 have also been discussed.
According to the Human Rights Act (HRA), the human rights that have been provided by the European Convention on Human Rights have to be considered as a part of the UK law in three methods. Therefore, the Act requires that the UK law should be interpreted, in a way that it complies with the rights provided by the HRA, so far as possible. On the other hand, if any Act of the Parliament has breached these rights, the courts can announce that such legislation is incompatible with the rights.[1] However, it needs to be mentioned that such a situation does not have an impact on the validity of the law. The reason is that the sovereignty of the Parliament has been maintained by the HRA and therefore, it is up to the Parliament to decide if the law needs to be amended or not. The HRA also makes it prohibited that any public authority should act in a particular way that can be considered as being incompatible with human rights, except where a statutory duty requires the public authority to act in that particular way. Therefore if the rights of any person have been disturbed by the public authority, proceedings can be initiated by such party against the authority. In this way, the HRA is different from the Bill of Rights of the United States or from the German Basic Law because these legislations contain the rights and at the same time, also allow the courts to declare the legislation as unenforceable if it is found incompatible. On the other hand, the long-standing doctrine of parliamentary sovereignty has been preserved by the HRA.[2] As a result, only the Parliament can decide if such legislation has to be amended or repealed.[3] Such situation is directly in contrast with the provisions of European Communities Act, 1972, according to which, the UK law can be overridden if such law is in conflict with any EU law that is directly enforceable.
Therefore it can be said that a ‘dialogue model’ has been adopted by the HRA as in this case, the Parliament has allowed the courts to indicate if any particular legislation is not compatible with the human rights but at the same time, it is up to the Parliament if and how it is going to respond. Therefore while dealing with the question if a particular legislation is compatible with the HRA, the courts are required to consider the decisions of the European Court of Human Rights (ECHR) but only so far as the court thinks it to be relevant.[4] It also needs to be mentioned that this does not bind the courts in UK but it needs that the courts should allow for the significant judgments as is the case for example with the common law rules related with statutory interpretation.
Under these circumstances, it can be said that the HRA plays an important role, along with the Joint Committee on Human Rights, in ensuring that the Parliament upholds and promotes the fundamental rights and freedoms provided to the people.
An important provision that is present in the HRA for the purpose of ensuring that any proposed bill complies with the provisions of HRA, section 19 mentions that the Minister in-charge of a legislature, is required to provide a statement before the Second Reading of the provision according to which, it has been mentioned that according to the opinion of the minister, the Bill complies with the human rights or that the Bill is not compatible with the human rights but still the government wants to continue with the it.[5] An Executive Statement has to be made by the Minister who is going to introduce the bill and contains the personal opinion of the Minister although such statement is not binding for Parliament or for the courts.[6] However the intention behind the introduction of the need for a statement related to the compatibility of the bill by the Minister has been introduced with a view to encourage Ministers that they should study the human rights consequences of any proposed Bill before it has been introduced. At the same time, the statement of compatibility may also result in triggering a prompting debate in the Parliament regarding the compatibility of the draft legislature with the human rights. At the same time, the Explanatory Notes that accompanied the Bill also contain elaborate information regarding the reasons why the legislature complies with the human rights. The meaning of the situation is that detail policy justification for the proposed Bill has been provided that had been informing the parliamentary debate on the draft legislation.
It has been mentioned by section 3, HRA that as possible, the primary legislation as well as the subordinate legislation has to be read by the courts and implemented in such a way that is complies with the ECHR rights. This requirement that needs that the laws should be interpreted in such a way that is compatible with the human rights is applicable to who is going to interpret the law, including a public authority that is acting under the law or the courts.[7] In the same way, this requirement related with interpretation of the law is applicable to all legislation which includes the laws that have been passed before the HRA came into force.[8] However the use of the term “so far as possible to do so” has imposed a significant qualification on this requirement. The courts have not been provided the power to make new laws because any interpretation by the courts has to be consistent with the Act that is being interpreted. In this regard, it has been mentioned in section 3(2) HRA that this power related with interpretation of the legislation does not impact the validity, operation or the implementation of any Act passed by the Parliament.
In case the Act of the Parliament prescribes that subordinate the decision also needs to be introduced like an Order or a Regulation, that is not compatible with human rights, section 3 will not have an impact on such subordinate legislation. However if it was possible to draft the subordinate legislation in a different way and as a result, it may comply with human rights, the subordinate legislation can be struck down by the courts.[9] This is consistent with the current power of the courts to strike down the subordinate legislation that does not fall within the power of the primary legislation due to the reason that the subordinate legislation does not enjoy the equal status as enjoyed by the primary legislation that has been comprehensively deliberated by the Parliament.
In this regard, it has been mentioned by section 4, HRA that in case a higher court like the High Court or the Court of Appeal comes to the conclusion that any provision present in an Act of Parliament is not compatible with the human rights, such court can make a declaration regarding the compatibility of the Act. In this declaration, it is stated by the court that according to its opinion, a particular provision of the legislation is not compatible with human rights. At the same time, it has been specifically mentioned by section 4(6) that such declaration of incompatibility by a court will not have any impact on the validity, operation or the enforcement of such legislation. Therefore, in such a case, the law will not be changed automatically even if the court has made a declaration of the compatibility. Only the Parliament can take a decision if it wants to amend the law or not.
In the present case, the home secretary wants to introduce a Bill for the purpose of amending the Terrorism Prevention and Investigation Measures Act, 2011. However the provisions of the proposed bill appeared to be contrary to the rights granted by the ECHR that have been assured by the Human Rights Act, 1998. At the same time, the HRA also requires that the Minister should present a statement for the second reading of the Bill that the legislation is compatible with HRA or that the legislation is not compatible but still the government wants to go ahead with the Bill.
References
Amos, Merris (2013). “Transplanting Human Rights Norms: The Case of the United Kingdom’s Human Rights Act” Human Rights Quarterly 35 (2): 386–407
Chalmers, G. Davies and G. Monti, European Union Law 2nd edn (Cambridge: Cambridge University Press, 2010)
Gallop, Nick in The Constitution and Constitutional Reform p.60 (Philip Allan, 2011)
Hoffman, David; Rowe, John (2006) Human Rights in the UK: an Introduction to the Human Rights Act 1998 (2nd ed.). Harlow, United Kingdom: Pearson Longman
Moller, ‘Two conceptions of positive liberty: towards an autonomy-based theory of constitutional rights’ (2009) Oxford Journal of Legal Studies 757
Lord Neuberger, ‘Forward’, in D. Hoffmann (ed), The Impact of the UK Human Rights Act on Private Law (Cambridge: Cambridge University Press, 2011)
Phillipson, Gavin (2003) “Transforming Breach of Confidence? Towards a Common Law Right of Privacy under the Human Rights Act” Modern Law Review 66 (5): 726–758
Dworkin, Law’s Empire (Cambridge, Ma.: Harvard University Press, 1986)
Case Law
Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457
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