Human rights in the UK: an introduction to the Human Rights Act 1998

553 Pages·10.017 MB·English

by  Hoffman, David, Rowe, John Jermyn

Human Rights in the UK FOURTH
FOURTH EDITION
FOURTH EDITION EDITION
An Introduction to the Human Rights Act 1998
Human Rights
A H
‘This is an excellent book, which is extremely student-friendly while remaining critical n
u in the UK
and analytical.’ I
n
Prof. Caroline Fournet, University of Groningen and fellow at the ECIA t m
r
o
d
u a An Introduction to the
The Human Rights Act 1998 is one of the most important statutes ever passed in the United
c
Kingdom and this highly-acclaimed textbook provides law students with a thorough introduction n
t
to the Act and the mass of case law that has followed it. io Human Rights Act 1998

n R
Human Rights in the UK has a clearly t
defi ned structure that fi rstly explores the Features include: o i

background of the Act and how it came t g
• Visual study aids, such as diagrams and h
to be passed. It outlines the constitutional
photographs, bring the subject to life. e h
context of the Act so that the discussion
• End of chapter questions test your H
is accessible to students starting on their t
understanding of the issues. u
legal study or the non-lawyer. The book m s
then examines the way in which the Act • The full text of both the Act and the
a
works in practice and remedies available European Convention in the appendices. n i
under it. The authors go on to discuss • Regular updates to the law available R n
the particular rights embodied in
the Act, giving each right separate at www.pearsoned.co.uk/legalupdates. ig
t
and detailed consideration, h
t h
drawing upon case law from both New to this edition s
the UK and Europe. Finally, the • The discussion of the case law is brought up to date, A e
issue of terrorism is considered highlighting the ongoing implications of the Human c

in more detail bringing current and Rights Act in the UK Law, with reference to the leading t U
controversial debate to the fore. 1
Supreme Court and European Court of Human Rights 9
decisions under the Act. This includes recent cases on 9 K
Combining broad topic coverage privacy and use of personal data, hearsay evidence, 8
with an engaging writing style,
immigration, public protests and terrorism.
Hoffman and Rowe provide an
• Discussion of developing and controversial areas,
outstanding platform for students
which are the subject of contemporary political and
wishing to gain a true insight into H
&
media debate, includes privacy, terrorism, travellers
this contentious and constantly o

evolving area of law. and immigration. Rf
f
om
w
a
David Hoffman is a practising chancery and commercial barrister in Manchester, having en
previously taught law at Somerville College, Oxford. He has written variously on human
rights topics, including the terrorism acts. David Hoffman &
John Rowe Q.C. is a retired barrister, a former leader of the C
©o John Rowe Q.C.
Northern Circuit, former Chairman of the Bar and a founder Gve
of the Northern Circuit Free Representation and Advice Scheme. etty Imr photo
Hofe t whea sP rPeavrelinatmioenn ot’fs T Ienrdroepriesnmd eAnctt sR (e1v9ie9w3 e–r 2o0f 0th1e). operation agesgraph
:
www.pearson-books.com
CVR_HOFF4482_04_SE_CVR.indd 1 07/02/2013 14:01
Human Rights in the UK
A01_HOFF4482_04_SE_FM.indd 1 2/8/13 10:44 AM
A01_HOFF4482_04_SE_FM.indd 2 2/8/13 10:44 AM
Human Rights in the UK
An Introduction to the Human Rights Act 1998
Fourth Edition
David Hoffman
MA (Oxon), BCL, Barrister
John Rowe Q.C.
MA (Oxon), Barrister
A01_HOFF4482_04_SE_FM.indd 3 2/8/13 10:44 AM
Pearson Education Limited
Edinburgh Gate
Harlow CM20 2JE
Tel: [phone]
Fax: [phone]
Website: www.pearson.com/uk
First published 2003 (print)
Second edition 2006 (print)
Third edition 2010 (print)
This edition 2013 (print and electronic)
© Pearson Education Limited 2013 (print and electronic)
The rights of David Hoffman and John Rowe to be identified as authors of this work have been asserted by them
in accordance with the Copyright, Designs and Patents Act 1988.
The print publication is protected by copyright. Prior to any prohibited reproduction, storage in a retrieval system,
distribution or transmission in any form or by any means, electronic, mechanical, recording or otherwise,
permission should be obtained from the publisher or, where applicable, a licence permitting restricted copying in
the United Kingdom should be obtained from the Copyright Licensing Agency Ltd, Saffron House, 6–10 Kirby
Street, London EC1N 8TS.
The ePublication is protected by copyright and must not be copied, reproduced, transferred, distributed, leased,
licensed or publicly performed or used in any way except as specifically permitted in writing by the publishers, as
allowed under the terms and conditions under which it was purchased, or as strictly permitted by applicable
copyright law. Any unauthorised distribution or use of this text may be a direct infringement of the author’s and
the publishers’ rights and those responsible may be liable in law accordingly.
Contains public sector information licensed under the Open Government Licence (OGL) v1.0.
http://www.nationalarchives.gov.uk/doc/open-government-licence.
Pearson Education is not responsible for the content of third-party internet sites.
ISBN: 978-1-4082-9448-2 (print)
978-1-4082-9450-5 (ePub) 978-0-273-79262-8 (eText)
British Library Cataloguing-in-Publication Data
A catalogue record for the print edition is available from the British Library
Library of Congress Cataloging-in-Publication Data
Hoffman, David, 1971–
Human rights in the UK : an introduction to the Human Rights Act 1998 /
David Hoffman, MA (Oxon), BCL, Barrister, John Rowe Q.C. MA (Oxon),
BCL, Barrister. – Fourth Edition.
pages cm
ISBN 978-1-4082-9448-2
1. Civil rights–Great Britain. 2. Great Britain. Human Rights Act 1998.
I. Rowe, John (John Jermyn), 1936– II. Title.
KD4080.H64 2013
342.4108′5–dc23
2012043916
10 9 8 7 6 5 4 3 2 1
17 16 15 14 13
Print edition typeset in 10/12pt Minion by 35
Print edition printed and bound in Great Britain by Henry Ling Ltd., at the Dorset Press, Dorchester, Dorset
NOTE THAT ANY PAGE CROSS REFERENCES REFER TO THE PRINT EDITION
A01_HOFF4482_04_SE_FM.indd 4 2/8/13 10:44 AM
Brief contents
Foreword to the Second Edition (2006) by the Rt. Hon. Lord Saville of
Newdigate xiv
Foreword to the First Edition (2003) by the Rt. Hon. Lord Williams of
Mostyn Q.C. xv
Publisher’s acknowledgements xvi
Table of cases xvii
Table of international treaties xxxii
Table of statutes xxxvi
Table of statutory instruments xlii
1 Introduction 3
2 The idea of human rights 11
3 The history of human rights and the Convention 23
4 Constitutional considerations 39
5 The scheme of the Human Rights Act 1998 63
6 Remedies under the Human Rights Act 93
7 Introduction to the Convention rights 115
8 The right to life: Article 2 135
9 Freedom from torture: Article 3 153
10 Freedom from slavery: Article 4 175
11 Personal liberty: Article 5 183
12 The right to a fair trial: Article 6 207
13 Retrospective legislation: Article 7 245
14 The right to privacy: Article 8 257
15 Freedom of conscience: Article 9 and Article 2 of the First Protocol 289
16 Freedom of expression: Article 10 311
17 Freedom of assembly: Article 11 329
18 The right to marry: Article 12 343
19 Non-discrimination: Article 14 353
20 The right to property: Article 1 of the First Protocol 363
21 Free elections: Article 3 of the First Protocol 381
22 The problem of terrorism 393
23 Conclusion 419
Appendix 1 The Human Rights Act 1998 424
Appendix 2 The European Convention for the Protection of
Human Rights and Fundamental Freedoms 446
Appendix 3 Members of the Council of Europe and Convention
ratifications 471
Appendix 4 The Universal Declaration of Human Rights 474
Appendix 5 The European Union Charter of Fundamental Rights 479
Further reading 491
Index 497
v
A01_HOFF4482_04_SE_FM.indd 5 2/8/13 10:44 AM
A01_HOFF4482_04_SE_FM.indd 6 2/8/13 10:44 AM
Contents
Foreword to the Second Edition (2006) by the Rt. Hon. Lord Saville of
Newdigate xiv
Foreword to the First Edition (2003) by the Rt. Hon. Lord Williams
of Mostyn Q.C. xv
Publisher’s acknowledgements xvi
Table of cases xvii
Table of international treaties xxxii
Table of statutes xxxvi
Table of statutory instruments xlii
1 Introduction 3
Acknowledgements 6
Abbreviations 6
Glossary of legal terms 6
2 The idea of human rights 11
The nature of human rights 11
Rights unlimited? 13
Striking a balance 15
The individual and the state 16
The rule of law 18
Implementing rights 20
Questions 20
3 The history of human rights and the Convention 23
International protection of human rights 26
The background to the Convention: the Second World War and
the United Nations 27
The background to the Convention: the Council of Europe 30
The Convention and the United Kingdom 33
A Convention chronology 36
4 Constitutional considerations 39
Introduction to the United Kingdom legal system 39
Parliament 40
The executive 40
The courts 42
Judicial review 44
The Act and Parliamentary sovereignty 47
Devolution 50
The European Convention in English law 51
vii
A01_HOFF4482_04_SE_FM.indd 7 2/8/13 10:44 AM
Contents
The machinery of the European Convention 53
The margin of appreciation 54
Deference to the legislature 57
Questions 60
5 The scheme of the Human Rights Act 1998 63
Importing the decisions of the European Court 63
The Act and other legislation 69
Techniques of interpretation 72
Compatibility and Parliamentary sovereignty 76
Subordinate legislation 80
The unlawfulness of infringing Convention rights 81
Definition of public authorities 82
The court as a public authority: horizontal effect 86
Parliamentary Privilege 89
Questions 91
6 Remedies under the Human Rights Act 93
Who can complain: ‘victims’ 93
What can the court do? 95
Damages 98
Proving the claim 104
Injunctions 105
Bringing the claim: procedure 107
Time limits and limitation 109
Where does the Act apply: jurisdiction 112
Questions 113
7 Introduction to the Convention rights 115
What rights are protected by the Act? 115
Omission of Articles 1 and 13 from the Act 116
The Protocols 117
Derogations and reservations 119
Limitations on rights: qualified rights 121
‘In accordance with the law’ 123
‘Necessary in a democratic society’ 125
Proportionality 126
Which rights are qualified? 128
General provisions: Articles 16–18 129
Questions 133
8 The right to life: Article 2 135
The right to life 135
The duty to protect life 136
Adequate investigation into loss of life 140
The right to die? 143
The unborn child 145
viii
A01_HOFF4482_04_SE_FM.indd 8 2/8/13 10:44 AM
Contents
The quality of life 147
The use of force 149
The death penalty 150
Questions 151
9 Freedom from torture: Article 3 153
The importance of Article 3 153
The scope of the article 154
Violence and the threat of it 156
Sentencing of criminals 157
Corporal punishment 158
Treatment of prisoners 159
Ill treatment of children 162
Medical treatment 164
Deportation of immigrants 165
Treatment of immigrants 167
Sexual discrimination and harassment 169
Pursuing a claim under Article 3 170
Evidence obtained by torture 170
Questions 172
10 Freedom from slavery: Article 4 175
The relevance of Article 4 today 175
What is slavery? 176
Forced or compulsory labour 178
Permissible labour 180
Questions 181
11 Personal liberty: Article 5 183
Personal liberty 184
The law on arrest 185
The scheme of Article 5 185
The quality of the law 186
The meaning of ‘arbitrary’ 187
Types of permissible detention 190
Detention after conviction 190
Breach of a court order 191
Reasonable suspicion of an offence 192
Detention of minors for education 194
Persons of unsound mind 195
Arrest for deportation 197
Prompt reasons for arrest 197
Prompt appearance before a court 198
Speedy review of detention 200
Compensation for wrongful detention 204
Derogations from Article 5 204
Questions 205
ix
A01_HOFF4482_04_SE_FM.indd 9 2/8/13 10:44 AM