Human Rights Act 1998: a safety net
In Part I of these two articles, I pointed out that Human Rights Act 1998 Act has two particularly civilising features as I see it: it provides a mechanism for checking judicial decisions against certain norms of rights and freedoms (eg should the mother of a child, entitled to stay here, be deported where it affects the child’s welfare: H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening)  UKSC 25); and it puts a check on the more extreme actions of individual state legislatures (which is what the Tories resent).
However I pointed out that the vast majority of the rights and freedoms enjoyed under English law are protected by the common law; and that if the Human Rights Act 1998 or parts of it were repealed most of us would not notice any effect. HRA 1998 is mostly a safety net; and a feature of a safety net is that it is only designed for a very small number of people.
To illustrate the working of HRA 1998 let me take some topical examples of the Convention in operation – or as it might be in operation; and of its relationship to the common law (already considered to a degree in https://dbfamilylaw.wordpress.com/2014/09/27/rights-freedoms-and-the-common-law/ ).
- What should be the rights of a man who has been convicted of abuse on one or more children on his seeking parole at the end of the minimum period which he should serve for a life sentence?
- What rights to privacy should a person have against the press making false or exaggerated reports against them (eg the parents of Madeleine McCann); or of making any reports if it interferes with their family life?
- What protection should a person have where s/he has informed a child protection department of abuse by A, where A is involved in separate court proceedings in relation to another child (and may be a danger to that child).
On (3) the law is muddled. I think I know the law on (1); but I doubt it is Human Rights Act 1998 compliant. On (2) the law says one thing and sections of the press will do another; and the law seems powerless to act against cynicism and rank financial power. My answers are general, and must not be taken as the words of an expert.
Parole for an abuser
Imagine that a man has been convicted of rape of a child and has been given a life sentence, with a recommendation that he serve at least ten years, after which he is eligible for parole. His application will be considered by the parole board. What right should his victim – the survivor of his rapes – have to make representation at his parole board hearing? What rights should she and her family have to comment on his case. She can put in a ‘Victim Statement’; but as far as I can see, as the law now stands, she can do no more. She cannot comment on the case he puts before the board, nor can her family be sure to have anything they say taken into account.
So what are the rights in play (I have to set these out in full):
6 Right to a fair trial
1 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…
8 Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 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.
The victim might argue also that Art 3 was engaged: Prohibition from torture ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. This is considered in connection with the informant case below; and it might well apply here. For the present, however, I will confine this European Convention 1950 assessment to Arts 6(1) and 8.
So far as the victim is concerned the critical feature of this is what is meant by ‘the determination of [her] civil rights’? It does not only mean involvement in court proceedings: it raises the question of whether a person is entitled to take part in proceedings at all. Clearly the abuser is entitled to take part in a judicial process operated by the parole board. Clearly his and the victim’s rights to respect for family life are engaged; and so far as these rights conflict – as they will do – the board must take this conflict into account. It may be said that the victim statement is sufficient. It seems to me it is worth the victim and her family pressing rather further with the board any right they may have to press the board to take their views directly into account; and to permit them an opportunity to comment directly on what the abuser has said to the board.
Right to privacy
It is said that there is no right to privacy at common law; though there are sophisticated English laws to protect a variety of forms of confidentiality. HRA 1998 has developed within the common law a greater respect for family life (Art 8). However, someone who suffers from the newspapers publishing untruths about them, their protection at law – as distinct from any assistance they might get from the post-Leveson Independent Press OS – is mostly derived from the common law of defamation.
It may be a rocky road ahead for such a claimant. HRA 1998 makes it no easier or more difficult. HRA 1998 s 12 deals with freedom of expression; and s 12(4) puts emphasis on the need for the courts to guarantee such freedom. This may assist a private individual (eg a parent who wants to publicise the behaviour of a local authority towards her child) or a newspaper (eg who wants to publicise family proceedings which might otherwise be expected to be in private). It is unlikely that HRA 1998 will have affected the position of the person who claims he has been defamed; though if his privacy has been directly infringed the HRA may assist him with a claim against whoever has published unlawfully.
Child welfare informant
Suppose you have information about abuse of a child, and you provide that information in confidence to a social worker and on terms that you will not have to go to court: can you relay on your name being kept from the abuser? The courts have partly provided an answer where the informant had herself been abused. The answer in her case was no: she had to give evidence. And if he were unrepresented she might have to be cross-examined by her abuser.
In a particular case which deals with this (Re A (A Child)  UKSC 60) a 10 year old girl (A) was having contact with her father (F), when an informant (X) came forward and said she had been seriously abused by F. A’s mother (M) was advised by her local children department to prevent contact; but on what evidence, said M? The only evidence was that of X who thought she had provided it in confidence. The right of A, F and M to a fair trial was said by the Supreme Court to override X’s right to respect for her family life and any fears there might be of her suffering ‘inhumane or degrading treatment’. Lady Hale said of degrading treatment:
 …. But the context in which treatment takes place affects the severity of its impact. The context here is not only that the state is acting in support of some important public interests; it is also that X is currently under the specialist care of a consultant physician and a consultant psychiatrist, who will no doubt do their utmost to mitigate any further suffering which disclosure may cause her.
Of the respective parties’ rights under Art 6 and 8 and how these should be balanced Lady Hale said:
 …. to order disclosure [of X’s evidence] in this case would undoubtedly be an interference with X’s right to respect for her private life. She revealed what, if true, would be some very private and sensitive information to the authorities in the expectation that it would not be revealed to others. She has acquiesced in its disclosure to her legal advisers and to the court in these proceedings, but that can scarcely amount to a waiver of her rights. She had no choice. Clearly, her rights are in conflict with the rights of every other party to these proceedings. Protecting their rights is a legitimate aim. But the means chosen have to be proportionate. Is there, therefore, some means, short of full disclosure, of protecting their rights?…
 The only possible conclusion is that the family life and fair trial rights of all three parties to these proceedings are a sufficient justification for the interference with the privacy rights of X. Put the other way round, X’s privacy rights are not a sufficient justification for the grave compromise of the fair trial and family life rights of the parties which non-disclosure would entail.
 It does not follow, however, that X will have to give evidence in person in these proceedings.
The right to a fair trial for the family therefore overrode any rights to which X might be thought to be entitled. This was not the same as the conclusion reached by the House of Lords in D v National Society for the Prevention of Cruelty to Children  AC 171; and it is not the same basis for a decision in police informant cases (see eg Marks v Beyfus (1890) 25 QBD 494; Powell & Anor v Chief Constable of North Wales Constabulary (Case No: CCRTI 1999/0904/B1) CA 1999 WL 1142622).
The Human Rights Act 1998 enabled the court to conduct a balancing exercise between competing rights. This brings clarity to the process of balancing respective rights. Whether it produces an answer which is clear in law, when compared with other informant cases (eg the police cases and D v NSPCC), is more questionable.
In each of these cases the claimants, or those who have been wronged in various ways, would have the same rights under the English common law as under HRA 1998. In the parole board case there might be heightened concern as to respective rights on both sides in the light of European Convention 1950 case law; and in the third case a resolution of the child welfare informant’s position is probably needed in statute law in the light of the conflicting Supreme Court decisions.
Little would change in these cases if HRA 1998 were repealed. The respective parties claims derive from the common law and will remain intact either way.