APA Citation
Hickman, T. (2010). Public law after the Human Rights Act. Hart Publishing. ISBN: 9781282897052
Chapter Summary
Foreword
Paul Craig introduces the book by highlighting the Human Rights Act 1998 (HRA) as a transformative statute in UK public law. He notes the challenges faced by the judiciary in interpreting and applying the HRA, and praises Tom Hickman’s thorough analysis of these issues.
Preface
Hickman explains the evolution of this book from a series of articles to a comprehensive study. He acknowledges the contributions of various scholars and institutions that supported his research.
Chapter 1: Introduction
The chapter sets the stage by discussing how the HRA has integrated human rights principles into UK public law, transforming traditional doctrines and practices. Hickman argues for an “amber light” approach that balances legal oversight with political accountability.
Chapter 2: The Common Law and the Human Rights Act
Hickman examines the relationship between the HRA and common law, detailing how the HRA builds on pre-existing common law principles. He explores the historical development of public law and the incorporation of human rights into domestic legal frameworks.
Chapter 3: Constitutional Theory and Constitutional Dialogue
This chapter discusses the theoretical underpinnings of the HRA and its impact on the UK’s constitutional framework. Hickman emphasizes the importance of judicial dialogue with other branches of government to maintain a balanced approach to human rights protection.
Chapter 4: Standards and Rights in Public Law
Hickman analyzes how the HRA has influenced the standards applied in public law cases. He argues that human rights principles have introduced new benchmarks for assessing governmental actions and ensuring accountability.
Chapter 5: Weight and Deference
The chapter explores the concept of judicial deference in the context of the HRA. Hickman critiques the notion of deference and proposes a framework where courts give appropriate weight to governmental decisions while upholding fundamental rights.
Chapter 6: Proportionality
Hickman delves into the principle of proportionality as applied by UK courts under the HRA. He critiques the inconsistency in its application and advocates for a clearer and more structured approach to proportionality in judicial review.
Chapter 7: Reasonableness
This chapter revisits the principle of reasonableness in public law. Hickman argues that reasonableness remains a vital standard even in the human rights era, providing a flexible and context-sensitive tool for judicial assessment.
Chapter 8: The Forbidden Process Element in Human Rights Review
Hickman highlights the significance of procedural review in human rights cases. He argues that ensuring fair and proper processes is as crucial as the substantive protection of rights.
Chapter 9: The Substance and Structure of Public Law after the Human Rights Act
This chapter examines the broader implications of the HRA on the structure and substance of public law. Hickman discusses the need for a coherent legal framework that integrates human rights without undermining traditional public law principles.
Chapter 10: The Right of Access to Court
Hickman explores the right of access to court under Article 6 of the European Convention on Human Rights. He distinguishes between procedural and substantive aspects of this right and argues for clear protections against judicial exclusion.
Chapter 11: Derogation from Human Rights Protections
The final chapter addresses the provisions for derogation under the HRA. Hickman critiques the approach taken by UK courts and proposes a more rigorous standard for allowing derogations from fundamental rights.
Conclusion
Hickman concludes by reflecting on the future of public law in the UK, considering potential reforms and the ongoing relevance of the HRA. He underscores the importance of maintaining a balance between protecting human rights and respecting parliamentary sovereignty.
Index and References
The book includes an index and comprehensive references, providing sources for further research and context for the arguments presented throughout the chapters.
Key Concepts
1. Integration of Human Rights Principles into Public Law
The HRA has integrated European Convention on Human Rights (ECHR) principles into UK law, transforming traditional public law doctrines. This integration has redefined the relationship between individuals and the state, ensuring that human rights are at the core of public law.
2. Common Law Evolution
The book explores how the HRA builds on the foundations of common law. Hickman traces the historical development of common law principles and how they have evolved to accommodate human rights norms. This historical perspective underscores the continuity and adaptability of common law in the face of new legal challenges.
3. Constitutional Dialogue
Hickman emphasizes the importance of dialogue between the judiciary, legislature, and executive. The HRA fosters a constitutional dialogue that ensures checks and balances among the branches of government. This dialogue is crucial for the dynamic interpretation and application of human rights in varying contexts.
4. Judicial Deference
The concept of judicial deference involves courts showing respect to the decisions of other branches of government, particularly in areas where those branches have expertise or democratic legitimacy. Hickman critiques excessive deference and advocates for a balanced approach that respects governmental decisions while safeguarding fundamental rights.
5. Proportionality Principle
Proportionality is a key principle in human rights adjudication under the HRA. It requires that any interference with rights must be necessary and proportionate to the legitimate aim pursued. Hickman calls for a more structured application of proportionality to ensure consistency and fairness in judicial review.
6. Reasonableness Standard
Reasonableness remains a vital standard in public law, even with the advent of human rights principles. Hickman discusses the historical significance of reasonableness and its continued relevance as a flexible, context-sensitive tool for assessing the legality of governmental actions.
7. Procedural Fairness
Procedural fairness, or due process, is highlighted as essential in the protection of human rights. Hickman argues that ensuring fair and proper procedures is as important as protecting substantive rights. This focus on process enhances the legitimacy and accountability of governmental decisions.
8. Substantive Rights and Public Law Structure
The HRA has influenced the substance and structure of public law by introducing new standards and rights. Hickman examines how public law doctrines have been reshaped to accommodate human rights, advocating for a coherent framework that integrates these new elements without undermining established principles.
9. Right of Access to Court
The right of access to court, as protected under Article 6 of the ECHR, is crucial for the enforcement of human rights. Hickman distinguishes between procedural and substantive aspects of this right, emphasizing the need for clear protections to prevent judicial exclusion and ensure justice is accessible to all.
10. Derogation and Emergency Powers
Hickman addresses the provisions for derogation under the HRA, which allow for temporary suspension of certain rights in times of emergency. He critiques the judicial approach to derogation and argues for stricter standards to ensure that such measures are truly necessary and proportionate.
11. Legal and Political Accountability
The book underscores the importance of accountability in both legal and political spheres. Hickman argues that while courts play a critical role in protecting human rights, ultimate accountability lies with the legislature and the executive. This balance ensures that human rights are protected within a framework of democratic governance.
12. Human Rights and Democratic Values
Hickman highlights the interplay between human rights and democratic values. The HRA not only protects individual rights but also promotes broader democratic principles, such as transparency, accountability, and participation in government. This alignment reinforces the legitimacy of the human rights framework within a democratic society.
13. Impact on Legislative and Policy-Making Processes
The HRA has had a significant impact on legislative and policy-making processes in the UK. Hickman discusses how human rights considerations are now integral to the development of laws and policies, ensuring that they comply with the standards set by the ECHR and the HRA.
Critical Analysis
1. Balancing Legal Principles and Political Realities
Hickman critically analyzes the balance between legal principles and political realities. He argues that while the HRA has strengthened the legal framework for protecting human rights, it must coexist with the political imperatives of governance. This tension between legal oversight and political necessity is a recurring theme, illustrating the complexities of applying human rights law in a democratic society.
2. Judicial Activism and Restraint
Hickman delves into the debate over judicial activism versus restraint. He critiques the notion that judges have overstepped their bounds under the HRA, arguing instead that courts have generally shown appropriate restraint. He provides examples of cases where judicial decisions have carefully balanced individual rights against public interest, demonstrating a nuanced understanding of the judiciary’s role.
3. Proportionality and Consistency
One of Hickman’s key critiques is the inconsistent application of the proportionality principle by UK courts. He argues that proportionality should be applied in a more structured and consistent manner to ensure fair outcomes. This analysis highlights the need for clearer guidelines and standards in judicial review, which can help maintain the legitimacy and predictability of human rights adjudication.
4. Procedural vs. Substantive Rights
Hickman makes a strong case for the importance of procedural rights in the human rights framework. He argues that procedural fairness is often overlooked in favor of substantive rights, yet it plays a critical role in ensuring justice. This emphasis on process review underscores the need for a holistic approach to human rights protection that includes both substantive and procedural dimensions.
5. The Role of Common Law
The integration of common law principles with the HRA is a significant theme in Hickman’s analysis. He explores how common law has adapted to incorporate human rights norms, providing a foundation for new legal standards. This evolution demonstrates the adaptability of common law and its capacity to absorb and reflect contemporary values and principles.
6. The Doctrine of Deference
Hickman critiques the doctrine of deference, which suggests that courts should defer to the expertise and authority of other branches of government. He argues that while some degree of deference is necessary, excessive deference undermines the protection of individual rights. His analysis calls for a balanced approach where courts critically evaluate governmental decisions without abdicating their responsibility to protect rights.
7. Impact on Public Law Doctrines
The HRA has significantly impacted traditional public law doctrines such as Wednesbury unreasonableness and proportionality. Hickman examines how these doctrines have been reshaped to align with human rights principles. He argues for a more coherent and integrated approach that preserves the essence of public law while incorporating human rights standards.
8. Judicial Interpretation and Legislative Intent
Hickman explores the challenges of judicial interpretation under the HRA. He critiques instances where courts have struggled to reconcile legislative intent with human rights obligations. This tension highlights the ongoing debate over the appropriate role of judiciary in interpreting and applying human rights law, and the need for clearer legislative guidance.
9. The Principle of Legal Certainty
Legal certainty is a core principle in Hickman’s analysis. He argues that the HRA should be applied in a manner that provides clear and predictable outcomes for individuals and public authorities. This principle is essential for maintaining public trust in the legal system and ensuring that human rights protections are effective and reliable.
10. Human Rights and National Sovereignty
Hickman addresses the tension between human rights obligations and national sovereignty. He critiques the view that the HRA infringes on UK sovereignty, arguing that human rights are integral to the rule of law and democratic governance. His analysis underscores the importance of international human rights standards in shaping domestic law and policy.
11. Critique of Derogation Practices
Hickman provides a critical examination of derogation practices under the HRA. He argues that derogations should be used sparingly and subject to rigorous judicial scrutiny. This critique is particularly relevant in the context of national security and emergency measures, where the potential for rights infringement is high.
12. Educational and Normative Role of the HRA
Hickman emphasizes the educational and normative role of the HRA in promoting a culture of human rights. He argues that the HRA has not only provided legal protections but has also influenced public attitudes and governmental practices. This broader impact is crucial for the long-term entrenchment of human rights values in society.
13. Future Directions and Reforms
Looking ahead, Hickman discusses potential reforms to strengthen the HRA and its implementation. He advocates for measures that enhance judicial capacity, clarify legal standards, and ensure that human rights considerations are fully integrated into public law. His forward-looking analysis provides a roadmap for evolving human rights protections in the UK.
Real-World Applications and Examples
1. Landmark Cases Influenced by the HRA
Hickman examines several landmark cases that demonstrate the impact of the HRA on UK public law. For instance, in R (Daly) v. Secretary of State for the Home Department [2001] UKHL 26, the House of Lords applied the principle of proportionality to assess the lawfulness of a policy restricting prisoners’ access to legal correspondence. This case exemplifies how the HRA has introduced a more rigorous standard of review, ensuring that governmental actions are proportionate to their aims.
2. Protection of Marginalized Groups
The HRA has significantly benefited marginalized and vulnerable groups. Hickman highlights the case of R (A and Others) v. Secretary of State for the Home Department [2004] UKHL 56, also known as the Belmarsh case, where the House of Lords ruled that the indefinite detention of foreign nationals suspected of terrorism without charge was incompatible with the right to liberty under Article 5 of the ECHR. This decision underscored the importance of safeguarding human rights even in the context of national security.
3. Enhancing Accountability and Transparency
Hickman discusses how the HRA has enhanced governmental accountability and transparency. In R (Evans) v. Attorney General [2015] UKSC 21, the Supreme Court ruled that the government could not block the release of letters written by Prince Charles to government ministers, reinforcing the right to freedom of information and transparency in public affairs. This case illustrates the role of the HRA in promoting open government and accountability.
4. Judicial Review and Executive Power
The HRA has reshaped judicial review by introducing human rights considerations into the assessment of executive actions. In R (Begum) v. Denbigh High School [2006] UKHL 15, the House of Lords examined whether a school’s uniform policy infringed a student’s right to manifest her religion. Although the court ultimately sided with the school, the case highlighted the necessity for public authorities to consider human rights when making decisions.
5. Influence on Legislation
The HRA has influenced the drafting and implementation of legislation. Hickman notes the impact of the HRA on the Equality Act 2010, which consolidated anti-discrimination laws and strengthened protections for various minority groups. The HRA’s principles helped shape this comprehensive framework, ensuring that legislation upholds human rights standards.
6. Reforming Policing Practices
Hickman illustrates how the HRA has reformed policing practices. In Gillan and Quinton v. United Kingdom [2010] ECHR 28, the European Court of Human Rights ruled that stop-and-search powers under the Terrorism Act 2000 violated the right to respect for private life. This judgment prompted legislative and policy changes, ensuring that policing practices comply with human rights standards.
7. Impact on Housing and Social Welfare
The HRA has had significant implications for housing and social welfare policies. Hickman discusses cases like R (Bernard) v. Enfield London Borough Council [2002] EWHC 2282, where the High Court held that the council’s failure to provide suitable accommodation for a disabled person violated her right to respect for private and family life. This case underscores the HRA’s role in promoting social justice and protecting vulnerable individuals.
8. Shaping Immigration Law
Immigration law and policy have been profoundly affected by the HRA. Hickman highlights the case of ZH (Tanzania) v. Secretary of State for the Home Department [2011] UKSC 4, where the Supreme Court emphasized the best interests of children in immigration decisions. This judgment, based on Article 8 of the ECHR, reinforced the need to consider human rights in immigration cases, particularly the rights of children.
9. Promoting Environmental Justice
The HRA has also been invoked in environmental justice cases. In R (Thames Water Utilities Ltd) v. Bromley Magistrates’ Court [2010] UKSC 3, the Supreme Court acknowledged that environmental protection can intersect with human rights, particularly the right to private and family life. This case highlighted the potential of the HRA to support environmental justice initiatives.
10. Addressing Health Care Rights
Health care rights have been enhanced through the HRA. Hickman discusses cases where individuals have challenged health care decisions on human rights grounds, such as the right to life and the right to respect for private life. These cases have led to improvements in health care policies and practices, ensuring that they are more responsive to human rights considerations.
11. Advancing Educational Rights
The HRA has also advanced educational rights. In R (E) v. Governing Body of JFS [2009] UKSC 15, the Supreme Court dealt with issues of racial and religious discrimination in school admissions. The court’s decision underscored the importance of ensuring that educational policies comply with human rights standards, promoting equality and non-discrimination.
12. Strengthening Access to Justice
Hickman highlights the HRA’s role in strengthening access to justice. Cases like R (Unison) v. Lord Chancellor [2017] UKSC 51, where the Supreme Court ruled that employment tribunal fees were unlawful as they impeded access to justice, demonstrate the HRA’s impact on ensuring that individuals can effectively exercise their legal rights.
13. Future Challenges and Opportunities
Looking to the future, Hickman discusses the ongoing challenges and opportunities for the HRA. He considers the potential impact of Brexit on human rights protections and the need for continued vigilance to ensure that the HRA’s principles are upheld. Hickman also emphasizes the importance of public engagement and education in sustaining a culture of human rights.