UK Law Articles
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The Times
September 12 2000
Justice for all, or a dangerous shift in power?
What does the Act do?
The Act provides the first written statement of people's rights and obligations by enshrining the European Convention on Human Rights into our own law.
The UK signed up to the Convention in 1951 but people claiming human rights abuses have had to trek to Strasbourg for a remedy. From October they can pursue cases in the British courts, and judges here will be able to apply human rights law directly in their rulings.
What impact will this have?
It introduces a new "human rights culture": in general, decisions by Parliament, a local authority or other public body must not infringe the rights guaranteed under the Act. Where rights conflict, such as privacy versus freedom of information, the courts will decide where the balance should lie.
How will the Act affect judges and legislators?
Judges will have the task of deciding cases as they come before the courts - in effect creating new law. If courts decide that a statute breaches the Act, they can declare it "incompatible", but they cannot strike it down. So they cannot overrule Parliament. It will then be for Parliament to amend the law.
How will judges make their decisions?
Judges will have to apply a new test of "proportionality": if a right is being interfered with or restricted, they will ask whether that restriction is proportionate (a sledgehammer not being used for a nut) and "necessary in a democratic society".
What are new rights and what compensation will people receive?
There are 17 (see panel above): they include basic rights such as the right to life, the right to freedom from torture and the right to a fair trial. They also cover education, voting, property, and respect for one's home and family life.
People will generally have to bring their claim within one year of the disputed decision but the timescale could be less under some court rules. Compensation is unlikely to be large; in Strasbourg, sums of compensation in the European Court of Human Rights are generally below £15,000. The main benefit will be a ruling that a decision is invalid.
We already have the European Convention on Human Rights - why now the Human
Rights Act?
Taking cases to Strasbourg is lengthy and can take several years. The new Act will mean that British judges decide on the rights of British citizens, and not European judges. It enables the courts to develop and adapt rights: the Act will be a "living instrument". Britain helped to set up the European Convention in 1950 and the Act brings its principles back into UK laws. It also brings the UK into line with other states in having its rights set out in writing.
Why is opposed by some people?
Those opposed to the Act, including the last Tory Government, say that it gives too much power to non-elected judges. They argue that because judges increasingly make decisions that are socially and politically sensitive, they will come under scrutiny over their background, education and views. The next dangerous step, say opponents, is towards American-style judicial elections.
Are there other concerns?
There are fears that the Act will greatly clog up the courts, particularly in the early months; and that the chief beneficiaries will be lawyers.
Does the Act also affect private disputes between individuals?
Yes. Although the Act enforces rights against public authorities - courts, police, councils, Government - it also covers private bodies with public functions (for example, a private school). Its impact extends to every dispute that comes before the courts because the judges are obliged to have regard to its principles.
Will the Act spawn a "rights free-for-all?" and a defensive
attitude among decision-makers?
At first the courts will be deluged with all kinds of cases - some of them extreme. Most of them will fail: in Scotland, where the European Convention on Human Rights is already in force, 98 per cent of cases have failed.
