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Published: Fri, 30 Nov 2018
The Human Rights Act 1998
In New Labour’s 1997 General Election Manifesto, Tony Blair proposed a radical programme of constitutional reform to ‘increase individual rights, decentralise power, open up government and reform Parliament.’ The party would go on to win the election, ending 18 years of Conservative rule and heralding the first major ideological change in British politics in a generation.
The Human Rights Act 1998 was one of the first pieces of legislation to be enacted by the new government. It is an important constitutional instrument which aims to incorporate key sections of the European Convention on Human Rights 1950 into British law. The European Convention was collectively drafted by a council of European States in the aftermath of World War Two in response to the terrible human rights atrocities that were perpetrated by the Axis powers. It codifies important human rights and civil liberties, including the right to life (Article 2), and freedom of expression (Article 10). British lawyers were said to have played an instrumental role in its design.
Although Britain was one of the first States to sign and ratify the Convention, asserting the rights that it guaranteed was not always a straightforward process for individual citizens. The doctrine of ‘Parliamentary Sovereignty’, famously espoused by constitutional theorists such as AV Dicey, means that the judiciary only recognises the authority of Parliament when it comes to drafting and enacting legislation. Cases such as R v Home Secretary, ex p Brind and R v Ministry of Defence, ex p Smith demonstrate how the Convention, as an international treaty, had no direct enforceability before the domestic courts. With no mechanism in domestic law to rectify breaches, claimants were forced to petition the European Court of Human Rights in Strasbourg once domestic remedies had been exhausted. This took an average of five years and could cost upwards of £30,000.
The Human Rights Act rectified this shortcoming, explicitly legislating to compel UK courts to interpret primary and subordinate legislation in a manner which is compatible with Convention right ‘so far as it is possible to do so.’ Public authorities are forbidden from acting ‘in a way which is incompatible with a Convention right’ unless doing so would mean breaching primary legislation. When new legislation is enacted, a Minister must make a statement to Parliament declaring that the provisions of a proposed Bill are compatible with the Convention rights, or explicitly inform the house that they are unable to make such a statement, but wish to proceed nevertheless. If a court cannot interpret primary legislation in a manner which is compatible with rights under the Convention, they may issue a ‘declaration of incompatibility.’ If this happens, a Minister has the power to make a ‘remedial order’ to rectify the incompatibility, although it must be noted that legislation remains valid and enforceable and a government can decline to make a remedial order should it chose to do so.
Prominent constitutional lawyers described the Human Rights Act as ‘radical’ at the time it was implemented, noting that the implications were ‘far-reaching, and that no field of legal practice [would] be unaffected.’ Early decisions would prove this to be a highly accurate observation. Section 3 of the Act bestows an assumption that all primary legislation can be read in a manner that is compatible with Convention rights, even if the primary legislation in question was enacted prior to the date on which the Human Rights Act received Royal Assent. This can be seen when contrasting Fitzpatrick v Sterling Housing Association with Ghadian v Godin-Mendoza.Both cases had near identical facts, involved the inheritance of protected tenancies by same-sex partners by virtue of the Rent Act 1977, a benefit that was afforded to heterosexual couples. Although the former case was dismissed, the latter was successful as it constituted a breach of Article 14 relating to discrimination. This decision was an early demonstration of how the Human Rights Act permeates all corners of the legal system.
In the fifteen years since it came into force, a considerable body of case law has developed around the Human Rights Act, quickly solidifying its position as one of the most important civil liberties instruments in the UK’s otherwise unwritten constitution and highlighting how radically the law has evolved as a consequence. For example, R v Secretary of State, Ex Parte Dalyhighlights how the principle of proportionality, originally a European doctrine, is increasingly becoming a normal part of UK jurisprudence. Mosley v News Group Newspapersheralded the development of a common law right to privacy by virtue of Article 8 (enshrining a right to privacy) attracting greater weight than Article 10 (freedom of expression), despite the fact that Parliament has not explicitly legislated in this regard.
As these examples demonstrate, the Act has unquestionably been successful at achieving its aim, and has incorporated Convention rights into domestic law. However, it is not without its critics or controversies. Decisions such as S and Others v Secretary of State for the Home Department,where a group of Afghan men hijacked a plane, flew it to the UK and claimed political asylum but were unable to be removed as doing so would breach their rights under the Convention attracted near universal condemnation from all sides of the political spectrum. Despite this, it must be remembered that the Act’s power is political rather than legal, and Parliament can chose to ignore declarations of incompatibility should it chose to do so. Despite newspaper rhetoric, there have only been twenty declarations of incompatibility that have become final. On the issue of prisoner voting, the present government has continued to enforce a blanket ban, declining to use powers to institute a remedial order under Article 10 despite the decision in Hirst v the United Kingdom (No 2), which demonstrates that such a ban falls foul of Convention rights.
Controversy about the political implications of the Human Rights Act has led some of the right of British politics to call for it to be scrapped and replaced with a British ‘Bill of Rights’. With the newly elected conservative government pledging reform, it remains to be seen whether or not the Human Rights Act will remain in its current guise.
Fitzpatrick v Sterling Housing Association  AC 47
Ghadian v Godin-Mendoza  UKHL 30
Hirst v the United Kingdom (No 2)  ECHR 681
Mosley v News Group Newspapers  EWHC 1777 (QB)
R v Home Secretary, ex p Brind  1 AC 696;
R v Ministry of Defence, ex p Smith  QB 517
R v Offen  1 WLR 253
R v Secretary of State, Ex Parte Daly  UKHL 26
S and Others v Secretary of State for the Home Department  EWCA Civ 1157
European Convention on Human Rights 1950
Human Rights Act 1998
Rent Act 1977
Bills and Parliamentary Reports:
‘Rights Brought Home: The Human Rights Bill’ M 3782 (1997) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf
UK Parliament, Declarations of Incompatibility by UK courts,
AV Dicey, Law of the Constitution, 1885 (9th Edition, London, Macmillan 1950).
KD Ewing, ‘The Human Rights Act and Labour Law’ Industrial Law Journal (1998) 27 (4): p.275-292. http://ilj.oxfordjournals.org/content/27/4/275
V Dodd, ‘Stansted hijack convictions are quashed’ The Guardian, 23 May 2003
M Holehouse, ‘David Cameron: I will ignore Europe's top court on prisoner voting’ The Telegraph, 4th October 2015
N Watt, ‘Michael Gove to proceed with Tories' plans to scrap human rights act’ The Guardian, 10th May 2015
‘Rights Brought Home: The Human Rights Bill’ M 3782 (1997) .https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf
R v Offen  1 WLR 253.
AV Dicey, Law of the Constitution, 1885 (9th Edition, London, Macmillan 1950).
 E.g., R v Home Secretary, ex p Brind  1 AC 696; R v Ministry of Defence, ex p Smith  QB 517
 op cit (1).
Human Rights Act 1998, s.3.
 ibid, s.6.
 KD Ewing, ‘The Human Rights Act and Labour Law’ Industrial Law Journal (1998) 27 (4): p.275-292. http://ilj.oxfordjournals.org/content/27/4/275.
Fitzpatrick v Sterling Housing Association  AC 47.
Ghadian v Godin-Mendoza  UKHL 30.
Rent Act 1977, Sch1 pt2.
R v Secretary of State, Ex Parte Daly  UKHL 26.
Mosley v News Group Newspapers  EWHC 1777 (QB).
S and Others v Secretary of State for the Home Department  EWCA Civ 1157.
 e.g., V Dodd, ‘Stansted hijack convictions are quashed’ The Guardian, 23 May 2003 http://www.guardian.co.uk/uk/2003/may/23/afghanistan.world.
 UK Parliament, Declarations of Incompatibility by UK courts, http://www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/130/13006.htm.
Hirst v the United Kingdom (No 2)  ECHR 681.
 M Holehouse, ‘David Cameron: I will ignore Europe's top court on prisoner voting’ The Telegraph, 4th October 2015http://www.telegraph.co.uk/news/uknews/law-and-order/11911057/David-Cameron-I-will-ignore-Europes-top-court-on-prisoner-voting.html.
 N Watt, ‘Michael Gove to proceed with Tories' plans to scrap human rights act’ The Guardian, 10th May 2015
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