Judicial Approaches to the Human Rights Act

Abstract

The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

Countering Terrorism in the Family Courts: A Dangerous Development

“…The first involves a cursory, formulaic and superficial human rights analysis where human rights issues and potential concerns are quickly dismissed. 256 Here, the comments made by Cobb J towards the end of Re C, D, E (Radicalisation: Fact Finding), 257 discussed above, are representative of this limited human rights analysis. After approving the local authority's application for interim care orders and authorising the electronic tagging of the parents, Cobb J confined the human rights analysis in this case to a brief and very generic paragraph: 'I have consciously reflected on the rights of these parents, under Article 9 of the ECHR to freedom of thought and religion, including the right to manifest their religion or belief … they have similar potent rights under Article 10 of the ECHR to freedom of expression and the right or freedom to hold opinions and to receive and impart information and ideas without interference.'…”

“…260 The second, more common, approach to human rights analysis involves a total lack of engagement with human rights at all. 261 This tendency of the family courts to be 'silent' 262 on human rights is reflected in the majority of radicalisation cases where any mention of human rights is entirely missing. 263 Therefore, and contrary to the claim put forward in the dominant narrative, it appears that considerations of human rights are largely absent within the radicalisation cases.…”