Human Rights Act 1998 Lecture

A. Introduction

Modern human rights laws originate from agreements made by the international community in the immediate post Second World War years. The Universal Declaration on Human Rights 1948 is the first statement of these rights; it is a General Assembly Resolution and as such is not legally binding. These rights were brought into form as a regional instrument within the European Convention on Human Rights and Fundamental Freedoms 1950. These rights are legally binding on States that have ratified the Convention and in the present day can be enforced against governments of Member States of the Council of Europe by other states parties or by individuals within the jurisdiction of a Member State. The Human Rights Act 1998 illustrated a further commitment to human rights laws within the United Kingdom. It introduced the rights within the Convention into UK domestic law. This meant that complainants no longer need to take their case to the European Court of Human Rights to uphold their Convention rights, but could argue in a UK court that their human rights had been breached by government legislation. When a piece of legislation is challenged on human rights grounds the higher courts can either interpret the relevant law in accordance with the Convention right, or make a declaration of incompatibility if a provision was not capable of being interpreted in accordance with human rights guarantees.  The Human Rights Act 1998 was introduced by the Labour government which was in power in the UK between 1997 and 2010. During their subsequent period in office from 2010 to 2024, successive Conservative leaders proposed repealing the Human Rights Act 1998 and replacing it with a British Bill of Rights, and there was also some discussion of withdrawing from the European Convention on Human Rights. A Bill of Rights Bill was introduced to Parliament in 2022 but was subsequently shelved and formally withdrawn. The HRA 1998 remains in force.

B. What are Human Rights?

Human rights might be considered as a minimum level of protection that should be afforded in law by a government to its citizens. They are inherent to all humans and a manifestation of human dignity. They are inalienable, which means a state cannot remove them from its people. The UK has promoted and supported civil liberties, which are residual, their implication is that citizens have the freedom to do anything that is not forbidden. They are a precarious legal concept and may be removed by express provisions, which override them in statute. Rights discourse has however gained ground since the end of the Second World War.

Human rights at the international level have been referred to as 'generations' of rights. The first generation included civil and political rights, which are the basic requirements of citizenship linked to security, liberty and equality. These include rights which are essential to the functioning of a democratic state, they include the right to freedom of expression, to a fair trial and to liberty. The European Convention on Human Rights 1950 to which the UK is a signatory, is a statement of civil and political rights at the regional level. On an international level the Universal Declaration on Human Rights 1948 (UDHR) is a declaration (non-legally binding) of civil and political rights, as is the United Nations International Covenant on Civil and Political Rights 1966.

This first generation of rights are considered to be negative rights, or are rights that the state cannot remove from an individual. The second generation of rights are economic, social and cultural rights. These usually require the state to provide or to guarantee access to something, and hence are also positive rights. The United Nations International Covenant on Economic, Social and Cultural Rights 1966 is the main statement of second-generation rights at the international level. It includes rights such as the right to education, the right to a basic standard of living and the right to work.

Third generation rights are those, which are afforded to communities, as opposed to individuals. Third generation rights include the right to self-determination and are frequently included in 'soft law' instruments, which are not legally binding. They are incorporated into the African Charter on Human and Peoples Rights 1981, for example Article 24 states that "All peoples shall have the right to a general satisfactory environment favourable to their development" (Article 24 African Charter). Recently scholars have argued that this distinction between generations of human rights is artificial and is seen by some to suggest that some rights are more important than others.

The development of human rights was accelerated after the Second World War. It led to the formulation of a number of international bodies and human rights treaties designed to protect individual human rights, including the United Nations and the Council of Europe. Human rights are thought to be the outcome of the change of the relationship between the citizen and the state. M. Loughlin in The Idea of Public Law (OUP, 2004: 114) describes the emergence within political thought of the right-bearing individual. This changes the traditional focus upon the rights of sovereigns and duties of citizens and inverts the relationship to place the emphasis on the rights of citizens and the obligations of government.

C. Human Rights and Parliamentary Sovereignty

If parliament is sovereign and can make any law, how can the government be constrained by human rights principles, which in effect constrain its legal decision making. The two concepts appear to be at odds, in that human rights protection is designed to protect individuals from the state and prevents legislation and executive action from acting as barriers to fundamental rights. At the same time, parliamentary supremacy theoretically affords total freedom to the Westminster Parliament to legislate upon any matter and with whatever conditions it chooses. It is clear that the Human Rights Act 1998 is legislation which is capable of repeal by Parliament.

D. The European Convention on Human Rights

The European Convention on Human Rights (ECHR) was signed in Rome in 1950 and was ratified by the United Kingdom in 1951. It came into force in those States who had ratified it in 1953. The drafting of the ECHR was a direct result of the movement for cooperation in Western Europe, which in 1949 led to the establishment of the Council of Europe. The rights within the ECHR are based upon the principles included within the UDHR. The ECHR transforms the non-binding declaration of the UDHR into binding legal principles with an enforcement mechanism in the form of the European Court of Human Rights (ECtHR). The Convention rights should be protected by law, without discrimination, in each state.

The ECHR provides a constraint on the legislative authority of national parliaments, including the Westminster Parliament. These constraints have been an area of political controversy within the UK, under both Conservative and Labour governments. In particular successive governments have objected to constraints on their powers due to decisions of the ECtHR, with some UK politicians arguing that the Court is overreaching its powers.

i. The Scope of the ECHR

The framers of the ECHR created rights that were important to the liberal democracies of Western Europe in the post Second World War period. They are generally accepted to be first generation or civil and political rights; although over time, the ECtHR has developed the scope of the Convention rights to address important societal issues of the present day.  Some of the rights within the ECHR include the right to life (Article 2), the freedom from torture, cruel, inhuman and degrading treatment or punishment (Article 3), the right to a fair trial (Article 6), the right to a private and family life (Article 8) and the right to freedom of expression (Article 10).

Article 14 provides the basis upon which these and other rights should be provided, it states that the rights are to be enjoyed:

without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Furthermore, Article 15 permits derogations of certain Convention rights in times of emergency. The State must inform the secretary general of the Council of Europe of measures taken to derogate and their reasons for doing so. The UK derogated from its obligations under the Convention after the terrorist attacks in Washington and New York on September 11th, 2001. The UK Parliament rushed through the Anti-Terrorism, Crime and Security Act 2001 (ATCSA 2001), part IV of which gave the Home Secretary the power to certify non-UK nationals who were suspected of being international terrorists and considered a risk to international security. Based on this certification, individuals could be deported or detained indefinitely.

As a result of the House of Lords ruling the UK government did not seek to renew the measures under sections 21 and 23 of ATCSA 2001. The case was appealed to the ECtHR who upheld the House of Lords' ruling on the illegality of the derogation, finding a violation of Article 5(1), Article 5(4) and Article 5(5) (A v United Kingdom (2009) 49 EHRR 29).

The scope of the Convention has also been extended by a number of optional protocols, that signatory states are able to sign up to.

• The First Protocol - provides for the peaceful enjoyment of one's possessions, the right to education in accordance with religious and philosophical convictions and the right to free elections by secret ballot.
• The Fourth Protocol - guarantees freedom of movement within a state and freedom to leave the country, it prevents a state from excluding its own nationals or not allowing entry.
• The Sixth Protocol provides for the abolition of the death penalty, the only exception is to be in times of war. The UK has ratified this Protocol.
• The Seventh Protocol provides for 'equality of rights and responsibilities of a private law character' between spouses.
• The Eleventh Protocol abolished the Commission and created a full-time Court.
• The Twelfth Protocol contains a general prohibition against discrimination and has not been ratified by the UK.
• The Thirteenth Protocol provides for the abolition of the death penalty in all circumstances and has been ratified by the UK.
• The Fourteenth Protocol makes further amendments to the composition of the ECtHR.
• The Fifteenth Protocol, which entered into force on 1 August 2021, adds a reference to the principle of subsidiarity and the margin of appreciation to the Preamble of the Convention, and reduces from six months to four months the time limit within which an application must be made to the ECtHR following a final domestic decision.
• The Sixteenth Protocol allows the highest courts and tribunals of a State Party to request advisory opinions from the ECtHR on questions of principle relating to the interpretation or application of the Convention rights. The UK has not ratified this Protocol.

ii. The Complaints Procedure

One important feature about the rights contained within the ECHR is that individuals have the right to complain of breaches of the Convention by States parties. The complaints procedure initially comprised of the European Commission of Human Rights and the European Court of Human Rights.  The function of the Commission was to:

1. enquire into an alleged breach of the Convention in inter-state cases; or
2. receive petitions from individuals or NGOs alleging a violation by the State; (the State has to accept individual petitions)
3. decide if the case was admissible;
4. fully investigate the facts and attempt to achieve a friendly settlement in the case;
5. if (d) was not achieved, the Commission would send a report to the State party and the Committee of Ministers;
6. the case could be disposed of politically within the Committee of Ministers, or be passed to the ECtHR.

Prior to the Eleventh Protocol, states needed to have accepted the compulsory jurisdiction of the court, or have consented to the case being brought before it. 

The Eleventh Protocol

The Eleventh Protocol abolished the European Commission of Human Rights and created a full time court. Although the new court has the same name, it is entirely different with new powers, functions and composition.  The court is now comprised of the number of judges that are equal to the number of the states parties to the Convention (Art 20 ECHR), with a judge from each country (Art 22 ECHR).  The main effect of this Protocol was to allow applicants to apply directly to the ECtHR.  There are a number of formations for the judges sitting in the ECtHR, including a single-judge formation, committees of three judges, chambers of 7 judges and the Grand Chamber of 17 judges (Article 26 ECHR).

There are a number of important points regarding admissibility to the ECtHR:

• Inter-state applications are still possible (Article 33) or individuals and NGOs (Article 34)
• The applicant should have exhausted domestic remedies and brought the application within four months of the final decision (as amended by Protocol 15, which reduced the previous six-month time limit)
• Any application that is manifestly ill-founded or an abuse of the individual right of application will be declared inadmissible (Article 35(3))
• Cases may be struck out because the applicant has not suffered significant disadvantage (Article 35(3)(b), as introduced by the Fourteenth Protocol)

The Fourteenth Protocol

The Fourteenth Protocol was introduced as a direct response to the massive workload of the Court which came about as a result of the Council of Europe expansion since 1989. Some of these changes include:

• The judges now serve for non-renewable terms of nine years
• Single judges make decisions on admissibility (Article 27)
• A committee of three judges can make a decision on admissibility and on the merits when the case relates to well-established law (Article 28)
• A chamber of seven judges makes a merits decision (Article 29)
• In cases of particular importance the Grand Chamber of 17 judges might sit (Article 30)
• There is a procedure for referral of a chamber decision to the Grand Chamber in certain cases of general importance or serious questions of interpretation (Article 43)

iii. The Strasbourg Jurisprudence and the UK

From 1975-1990, the ECtHR decided 30 cases involving the UK. The UK were found to be in breach of the Convention in 21 cases. By 2000, there had been 64 decisions in the Court against the UK. Between 2002 and 2004 the Court found 69 violations of the ECHR by the UK, and a friendly settlement was also reached in a further 13 cases.

Article 2 cases (the Right to Life), the UK was found to be in breach of Article 2 in the following cases:

• In McCann v UK (1995) 21 EHRR 97 Article 2 had been violated following the use of lethal force by the security forces in Gibraltar
• Jordan v UK (2003) 37 EHRR 52 - there was no effective investigation of the death of the applicant's son by the police
• In Pretty v UK (2002) 35 EHRR 1, the Court found that there was no right to die within Article 2 where a terminally ill applicant wished assisted suicide

Article 3 cases (freedom from Torture, Inhuman and Degrading Treatment or Punishment)

• Republic of Ireland v UK (1978) 2 EHRR 25 - interrogation of IRA suspects
• Tyrer v UK (1978) 2 EHRR 1 - corporal punishment of juveniles in the Isle of Man
• Soering v UK (1989) 11 EHRR 439 - concerns the requests of the USA to UK for the extradition of a suspect in a murder case who would be subject to the 'death row phenomenon' which was found to be a violation of Article 3, despite the fact that the UK would not be directly involved in the Article 3 breach

Article 5 (the right to liberty) and Article 6 (the right to a fair trial) cases

• In X v UK (1981) 4 EHRR 188 - certain procedures for the detention of mental health patients were found to breach Article 5
• Brogan v UK (1988) 11 EHRR 117 - the detention of terror suspects under the Prevention of Terrorism (Temporary Provisions) Act 1984 for up to 7 days without judicial authority was a breach of Article 5
• Caballero v UK (2000) 30 EHRR 643 - the denial of bail for certain offences under the Criminal Justice and Public Order Act 1994
• In Murray v UK (1996) 22 EHRR 29, Article 6 was breached where an applicant was denied access to a solicitor for 48 hours in police detention
• V v UK (2000) 30 EHRR 121 - 2 minors were convicted of murder in a trial conducted in front of media publicity
• Steel and Morris v UK (2005) 41 EHRR 403, the denial of legal aid to two environmental activists to defend themselves against McDonalds in a libel action, was found to be a breach of Article 6

Article 8 (the right to a private and family life) cases

• Dudgeon v UK (1981) 4 EHRR 149 - legislation in Northern Ireland making homosexual conduct a crime, held to be a breach of Article 8.
• In Malone v UK (1984) 7 EHRR 14, and Halford v UK (1997) 24 EHRR 523 the practice of phone tapping was held to infringe Article 8

Article 10 (Freedom of Expression)

• Sunday Times Ltd v UK (1979) 2 EHRR 245 - contempt of court infringed Article 10
• Handyside v UK (1976) 1 EHRR 737 - law on obscene publications was not in breach
• Observer, Guardian and Sunday Times v UK (1991) 14 EHRR 153 - Article 10 violation due to restraints on publication of a book by retired security services officer
• Goodwin v UK (1996) 22 EHRR 123, the requirement of a journalist to disclose their sources was a breach of Article 10

Article 11 (Right to Protest and Freedom of Association)

• In Young, James and Webster v UK (1981) 4 EHRR 38, three former BR employees were dismissed for refusing to join a trade union, and had their Article 11 rights breached by legislation on the closed shop in 1974 and 1976
• In Wilson v UK (2002) 35 EHRR 523 a former employee of the Daily Mail had suffered discrimination because he refused to agree to individual negotiation for pay and had his Article 11 rights violated

The importance of this case lies not just in the Court’s decision but also in the protracted non-compliance by the UK government. The UK’s delay in responding to the decision raised serious questions about the effectiveness of the Convention enforcement mechanism and the relationship between the ECtHR and national governments.

E. The Human Rights Act 1998

Prior to the introduction of the Human Rights Act 1998 (HRA) human rights principles were contained in common law and in various statutory provisions. International law has had a considerable influence on the development of human rights including the UDHR, the ICCPR, the ICESCR and the ECHR. There have also been a number of international institutions, which have established multilateral human rights treaties and these institutions have a key role in the negotiation and drafting of treaties between states.

Section 2 Human Rights Act 1998 - Interpretation of Convention Rights

Section 2(1) of the HRA 1998 requires that a court or tribunal interpreting questions relating to Convention rights must take account of various decisions of the European adjudicatory bodies. These include judgments or advisory opinions of the ECtHR, an opinion of the former European Commission under Article 31 ECHR, decisions under Article 26 or 27(2) ECHR, or a decision of the Committee of Ministers under Article 46 ECHR.

When interpreting Convention rights the ECtHR and the UK courts must take account of the principle of proportionality. Legitimate aims can be pursued through government legislation but that aim must be proportionate to any human rights impacts that result.

Proportionality often involves the balancing between the benefits achieved by doing something and the harm that can be done by interfering with an individual's Convention rights in the process.

Section 3 Human Rights Act 1998 - Interpretation

Section 3 of the HRA 1998 requires the courts to interpret primary and secondary legislation in a manner that is compatible with Convention rights. An example of the House of Lords interpreting statutory law in the light of the right to a fair trial in Article 6 was found in R v A.

For Bills introduced since the HRA 1998 came into force in 2000, the minister introducing the Bill must, under section 19, issue a ‘statement of compatibility’ that the Bill is compatible with Convention rights.

Section 4 Human Rights Act 1998

Section 4 of the HRA 1998 enables courts to make a 'declaration of incompatibility' where it is not possible for it to interpret a statute in line with Convention rights.  It is only the higher courts that are able to make such declarations, these include:

1. The Judicial Committee of the Privy Council
2. The Courts-Martial Appeal Court
3. The High Court of Justiciary
4. The Court of Session
5. The High Court
6. The Court of Appeal
7. The UK Supreme Court

As a result of A and Others the regime was repealed by the Prevention of Terrorism Act 2005, which put into place a regime of Control Orders in which suspected terrorists had constraints placed on their movements, but were not detained in prison. Control Orders were subsequently replaced by Terrorism Prevention and Investigation Measures (TPIMs) under the Terrorism Prevention and Investigation Measures Act 2011.

Section 6 Human Rights Act 1998

Section 6 provides the ability for the HRA 1998 to enforce Convention rights against public authorities. Section 6(1) HRA 1998 provides that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. A public authority has been given a wide definition and this is included within section 6(3), it includes courts and tribunals and any person or body whose functions are of a public nature. It does not include either House of Parliament, or a person acting in their capacity in connection with proceedings in Parliament.

Section 7 Human Rights Act 1998

Section 7(1) HRA 1998 allows a prospective victim to bring proceedings against an authority in an appropriate court or tribunal. Section 7(5) requires that the proceedings be brought within one year of the act complained of taking place, or a longer period if the court or tribunal considers it to be equitable. Victim means anyone affected by the act or omission that leads to the breach of the Convention right.

Section 8 Human Rights Act 1998 - Remedies

Once a breach of a Convention right by a public authority is established, the remedies available under section 8(1) include: damages, declarations, injunctions, quashing orders, mandatory orders, and prohibiting orders.

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