The Human Rights Act 1998 (HRA) incorporates a large part of the European Convention of Human Rights (ECHR) into English law. The major difference between this Act and other law is that for the first time positive rights are enshrined in law.
The ECHR is a dynamic document, it is a living instrument to interpreted in the light of modern circumstances. Interpretations can therefore change over time.
Three types of rights are enshrined in the ECHR, and therefore in the HRA:
- Absolute rights which do not permit any derogation
- Limited rights which can only be limited in defined circumstances and ways
- Qualified rights.
The two articles of the ECHR which in all probability will be the most frequently used in cases concerning members of FNF are article 6, the Right to a Fair Trial, and article 8, the Right to Respect for Private and Family Life, Home and Correspondence.
ECHR - Article 6
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
- Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
ECHR - Article 8
Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well?being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 6 is a limited right while article 8 is a qualified right.
The right to a fair trial guarantees a certain minimum standard in relation to a criminal trial. Additionally, in the determination of their civil rights and obligations, or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time.
Limitations to this general right can be imposed in the interests of morals, public order or national security in a democratic society; where the interests of juveniles or the protection of private life of he parties so require; or to the extent that publicity would prejudice the interests of justice.
The application of a qualification of a right, by the European Court of Human Rights (ECtHR) or a court or tribunal in the UK, obliges the court to apply the following four criteria without which no qualification of the right is possible:
- Is the restriction on civil or political right prescribed by (national) law?
- Is the restriction justified by one of the aims recognised by the ECHR?
- Is the restriction necessary in a democratic society?
- Is the restriction applied free of discrimination?
"Necessary in a democratic society" has been defined as follows: The restriction must:
- fulfil a pressing social need
- pursue a legitimate aim
- there must be a reasonable relationship of proportionality between the means employed and the aim pursued
A democratic society is also considered to be based on the concepts of "pluralism, tolerance and broadmindedness."
In most family law / Children Act cases, proportionality will play a very important role, balancing competing right such as the right to respect for family life of the non-residential parent against the right to respect of the private life of the residential parent. The following considerations on proportionality is by no means an exhaustive list but serves as a first approximation for those who consider running their cases under the HRA:
The courts will apply proportionality by looking at:
- the nature of the competing interests
- the extent of the interference with family life
- the repercussions of the interference with family life
- whether the rights are illusory or not
- the extent to which the right is exercised
By way of example:
The HRA goes beyond the CA 1989 in that it also recognises the right to family life of parents and the extended family - siblings, grandparents - and does not simply take the welfare of the child(ren) as paramount.
The welfare of the child(ren) will nevertheless remain central to the argument, but the right to respect of family life will not automatically apply to all parents. Only married parents and mothers have an automatic right to family life. Unmarried fathers have to establish that, for ECHR / HRA purposes, family life did or does indeed exist.
The same argument holds for the extended family. If the grandparents see their grandchildren only once or twice a year, than their claim to being denied family life if the child is taken to live overseas by the resident parent is much weaker than the claim of grandparents who see their grandchildren regularly or even babysit them regularly.
Criteria which establish existence or not of family life are not to be found in the ECHR or the HRA but in European case law, and eventually also in domestic human rights case law. In case of conflict between domestic and European human rights case law, it is the latter which carries more weight.
General considerations on litigation under the HRA
The HRA applies not only to litigation between individual and the state but also to litigation between individuals. The HRA informs litigation between private individuals, but it must never be mistaken as an 'easy' route for litigants to appeal decisions they disagree with. This means that words should not be interpreted to mean what the litigant wants them to mean but must be firmly grounded in the practice of the European Court of Human Rights and, increasingly, in the Human Rights practice of the domestic courts.
If you want to bring a human rights argument in your case, make sure that the human rights argument is an important point.
The following checklist can prove helpful:
- Does the human rights add anything to your case?
- How does the human rights strengthen your case?
- Be specific in the application of the HRA to your case.
- Clearly identify which rights are at stake.
It is generally held that the courts will be very hard on people who take "bad" human rights points before them, such as spurious human rights arguments, or human rights for the sake of going to court. Such cases are likely to be thrown out with costs awarded against the applicant.
Keir Starmer - European Human Rights Law, The Human Rights Act 1998 and the European Convention on Human Rights, London: LAG 1999, £35.
Heather Swindells et al. - Family Law and the Human Rights Act 1998, Bristol: Family Law, 1999, £35
Unicef - UN Convention on the Rights of the Child