Navigating Legal Boundaries: Human Rights Act 1998 and Article 9 of the ECHR

QUESTION 1 Certain sections of the Human Rights Act 1998 have certainly increased the powers of the courts relative to both the Parliament and other public bodies. Nevertheless, there is little justification at this time to replace the Act with a Bill of Rights because the former does actually perform the same function as a Bill of Rights.

The ECHR rights have been applied in the UK through the HRA 1998. As such, the HRA 1998 has also been considered to be in the nature of a Bill of Rights. The question is how fa does it increase the powers of the courts relative to Parliament and other public bodies. The answer is that due to certain provisions in the Act, there are powers given to the courts to review the laws of the parliament as well as the actions of the public bodies to see whether these actions are compatible with the ECHR or not. The HRA 1998 has effectively enforced the need to implement the principle of compatibility between the ECHR and the national law. Section 4 allows the courts in the UK to declare incompatibility between statutory law and ECHR rights because it allows the court to “determine whether a provision of primary legislation is compatible with a Convention right” and to made a declaration of incompatibility, if there is such incompatibility between the two. While doing so, the court is required (under Section 3) to interpret statutory law “so far as it is possible to do so” with compliance with the ECHR rights. Thus, sections 3 and 4 give powers to the courts as relative to the parliament to not only review the parliamentary legislation but to also interpret it in consonance with the ECHR rights and to declare incompatibility between the two if relevant. Furthermore, Section 6 provides that the actions of the public authorities must comply with the ECHR. This again can be used by the courts to assess whether the actions of the public authorities ae in fact in accordance with the ECHR or not. For all the students who are seeking HRM dissertation help, understanding these provisions and their implications is critical for a deep analysis of human rights law in the UK.

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Based on the above discussion it can be surmised that there are two impacts of the HRA 1998 on the relations between courts on the one hand and the parliament and public authorities on the other hand. Courts are required to interpret legislation involving human rights issues in a way that as fa as possible will gives effect to the rights, and to review the actions of the public authorities to assess if they are in compliance with ECHR.

Jurisprudence developed under the HRA 1998 suggests that courts have already used these powers in the HRA 1998 both with relation to the parliament as well as the public authorities. In A v. Secretary of the State for the Home Department, the House of Lords declared incompatibility between Anti-Terrorism, Crime and Security Act 2001 and the ECHR because the indefinite detention provisions in the former were held to be contrary to the protections offered by the ECHR. Although, the powers of the court do not go so far as to invalidate the parliamentary law and can only declare incompatibility, the aftermath of A v. Secretary of the State for the Home Department exemplifies the significance of even the declaration of incompatibility because after this judgment, the parliament chose to repeal the offending provisions. Similar judgments marking incompatibility between the parliamentary law and the ECHR have been given by courts; for instance, in Attorney General’s Reference (No. 4 of 2002). The effect of the HRA 1998 provisions has also been felt in the way the courts in England and Wales have responded to ECtHR jurisprudence. For instance, in R (Ullah) v Special Adjudicator, the House of Lords observed courts not dilute ECtHR jurisprudence and in R v Horncastle, the Supreme Court h held that as far as possible courts should consider the ECtHR jurisprudence.

Based on the above, a question may be raised whether the HRA 1998 should be replaced by a Bill of Rights. There is no justification at this point to argue such a position. To argue in favour of it (on the basis of the courts’ powers relative to parliament and public authorities) may be taken to mean that one is arguing to reverse the ability of the courts to effectively protect the rights of individuals. Furthermore, if the Bill of Rights is to have similar effectiveness as the HRA 1998, then the provisions may remain the same barring the need to refer to the ECtHR jurisprudence. However, as the ECtHR jurisprudence is already transposed into the English law through cases decided by English courts, this may not make much difference. The only thing that may change is how court powers are relative to the parliament and public authorities. However, for an effective Bill of Rights, as in the United States, there may be still a need to ensure some judicial review of the parliamentary laws and public authorities’ actions.

QUESTION 4 The issue in this situation is whether the policy that prevents employees from wearing a Star of David on a necklace or Mangal Sutra breaches the rights of Freda Fry and Priyamvada Agarwal under Article 9 of the European Convention of Human Rights (ECHR).

Article 9 of the ECHR has two clauses. In the first clause, the article protects the right to freedom of thought, conscience and religion, which includes the right to manifest their religion or belief. However, the second clause to Article 9 provides that the freedom to manifest religion or beliefs may be subject to limitations prescribed by law provided that such limitations are necessary in the interests of public safety, public order, health or morals, or for the protection of the rights and freedoms of others. Therefore, the right to manifest one’s religion is not absolute and it is possible for the state to provide certain limitations on the right. The jurisprudence developed by the ECtHR as well as courts in the UK can be referred to here to understand the scope of the right to manifest the religion or belief as well as the scope of limitations that can be imposed on the right. An important case in this context is the case of Eweida and Chaplin v United Kingdom in which one of the the claimants alleged discrimination by the employer/ British Airways because she was not permitted to wear her Cross outside of her. The ECtHR held that her Article 9 rights had been breached. The other claimant in the case was a nurse who was also prevented from wearing a cross at the workplace. However, the ECtHR held that policy was not discriminatory because the claimant’s right to manifest religion was required to be balanced against the safety and protection of health of hospital wards. What can be seen in this case is that the court will consider the legality of the action based on whether there is a justification of restriction based on some ground in Article 9(2). In the case of the nurse, the public health ground can be used to claim justification for restriction. This was not the case for the airline hostess. This can also be seen in the context of the ECtHR’s decision in Kalaç v Turkey in which the court had observed that the religious freedoms protection cannot be extended to each and every such act motivated by religion.

Applying the above principles to the present situation, Freda Fry works on the front desk of an NHS hospital and being Jewish, wishes to wear a Star of David on a necklace outside of her uniform. The Trust policy bars this for its public facing staff to ensure that none of its end users feel alienated. As Freda is not posted to a public facing position, she is required to conceal her Star of David necklace. Reference may be made to SAS v France, in which case, the issue of ban on face covering in France was considered and the court allowed ban on face covering as essential for the purpose of living harmoniously under the doctrine of margin of appreciation. It may also be mentioned that Article 9 treats only private manifestation as inviolable and allows restrictions on forum externum or external manifestation. Based on this, the court may allow the restriction under Article 9(2).

As Priyamvada Agarwal is a nurse and the wearing of necklaces is banned in order to avoid injury when patients may grab hold of necklace, or the necklace may come in the way of treatment, the policy may be justified on the basis of the decision of the court in Eweida and Chaplin v United Kingdom where the court held that based on public health considerations easonable restrictions may be placed on the right to manifest religion. Furthermore, in R (Begum) v Governors of Denbigh High School, the House of Lords held in favour of a school policy that denied entry to a Muslim girl because she was wearing her jiljab. In this case, the question arose as to whether jiljab is an Islamic dress, which can be protected under the right to manifest religion. The House of Lords observed that evidence showed that the salwar kameez is the archetypal of Islamic dress and that interpretation of the dress rule within Islam is very wide and difficult to interpret one way or the other. The same principle can be applied to the question of mangal sutra, which is worn by some Hindu women but not all. This judgment may be applicable to this case scenario where it may be argued that there is no archetypal wearing of the mangal sutra amongst Hindu women and that it is open to interpretation where some Hindu women wear it and some don’t. At the same time, Kalaç v Turkey may be applied to hold that religious freedoms protection cannot be extended to each and every such act motivated by religion.