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 of Human Rights 1948 is the first global 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 Convention for the Protection of 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 through inter-state applications or individual applications by victims of a breach within the respondent state’s jurisdiction. The Human Rights Act 1998 illustrated a further commitment to human rights laws within the United Kingdom. It gave further effect in UK law to the Convention rights listed in section 1. 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. Courts and tribunals must, so far as possible, read legislation compatibly with Convention rights. If a provision of a Westminster Act cannot be read compatibly, a court specified in section 4 may make a declaration of incompatibility.  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 A Bill of Rights Bill was introduced to Parliament in 2022 but was subsequently shelved and formally withdrawn.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 everyone within its jurisdiction. 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 which the UK has ratified, is a statement of civil and political rights at the regional level. On an international level the Universal Declaration of Human Rights 1948 (UDHR) is a declaration (non-legally binding) of civil, political, economic, social and cultural rights. The United Nations International Covenant on Civil and Political Rights 1966 is a treaty binding on its states parties, including the UK.

First-generation rights often require the state to refrain from interference, but can also require positive steps, for example to protect life. 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 which is recognised in Article 1 of both UN Covenants. Other collective rights 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 gives binding legal force to a number of the rights stated in the UDHR 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 binds states in international law, including in respect of Acts of the Westminster Parliament. An adverse judgment does not invalidate an Act. These obligations 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 prohibition of torture and inhuman or 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 applies to matters within the scope of another Convention right even if there is no breach of that right. 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 war or another public emergency threatening the life of the nation, only to the extent strictly required and consistently with other international obligations. No derogation is permitted from Articles 3, 4(1) or 7, or from Article 2 except for deaths resulting from lawful acts of war. The State must inform the secretary general of the Council of Europe of measures taken to derogate and their reasons for doing so, and notify the Secretary General when the measures cease. 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 reasonably believed to pose a risk to national security. Section 23 allowed detention under immigration powers even where removal was prevented by law or by a practical obstacle.

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 UK withdrew the derogation in 2005. On a separate application the ECtHR found violations of Articles 5(1) and 5(5) in respect of nine applicants and Article 5(4) in respect of four who had insufficient information to challenge their detention (A and Others 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 not to be denied education and respect for parents’ religious and philosophical convictions in education, and the right to free elections to the legislature by secret ballot.
• The Fourth Protocol - guarantees freedom of movement for those lawfully within a state and freedom to leave the country, it also prohibits expulsion of nationals, refusal of their entry, collective expulsion of aliens and imprisonment solely for inability to fulfil a contractual obligation. The UK has not ratified this Protocol.
• The Sixth Protocol provides for the abolition of the death penalty, but allows a state to provide by law for the death penalty for acts committed in time of war or imminent threat 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. It also covers safeguards for lawfully resident aliens facing expulsion, review of criminal convictions, compensation for miscarriages of justice and protection against double jeopardy. The UK has not ratified this Protocol.
• 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, for final domestic decisions from 1 February 2022, 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 then had 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 elected in respect of each state who sits in an individual capacity (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) and individuals, groups of individuals and NGOs claiming to be victims may apply under Article 34
• The applicant must have exhausted available and effective 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))
• An individual application may be declared inadmissible if the applicant has not suffered a significant disadvantage, unless respect for human rights requires the Court to examine the merits (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 may declare an individual application inadmissible or strike it out where no further examination is needed (Article 27)
• A committee of three judges can unanimously make a decision on admissibility and on the merits when the case raises a question covered by the Court’s well-established case 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)
• A party may request referral of a chamber judgment to the Grand Chamber within three months. A panel of five judges accepts requests only for serious questions affecting interpretation or application of the Convention or a serious issue of general importance (Article 43). Final judgments bind the respondent state and the Committee of Ministers supervises execution (Article 46)

iii. The Strasbourg Jurisprudence and the UK

The House of Commons Library lists 30 UK case entries from 1975 to March 1990, grouping related cases together. The UK was found to be in breach of the Convention in 21 of those entries. By the end of 2000 the Court had delivered 156 judgments involving the UK. Between 2002 and 2004 the Court found at least one violation of the ECHR by the UK in 69 judgments, with a further 13 judgments recording a friendly settlement or striking out a case.

Article 2 cases (the Right to Life), the Court considered 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 because the operation had not been planned and controlled with sufficient care
• Jordan v UK (2003) 37 EHRR 52 - there was no effective investigation into the fatal shooting 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. The five interrogation techniques amounted to inhuman and degrading treatment.
• Tyrer v UK (1978) 2 EHRR 1 - corporal punishment of juveniles in the Isle of Man. Judicial birching was degrading punishment.
• 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 faced a real risk of the 'death row phenomenon'. Extradition in those circumstances would have breached the UK's own obligation under Article 3

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 without being brought promptly before a judge was a breach of Article 5(3). Even the shortest detention, four days and six hours, was too long
• Caballero v UK (2000) 30 EHRR 643 - the denial of bail for certain offences under the Criminal Justice and Public Order Act 1994 prevented a judge from considering release in the applicant’s circumstances and breached Article 5(3)
• In John 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, when adverse inferences could be drawn from his silence
• V v UK (2000) 30 EHRR 121 - 2 minors were convicted of murder in a trial conducted in front of media publicity. The formality and publicity of the trial prevented the applicant from participating effectively, in breach of Article 6.
• 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 criminalising consensual sexual acts between adult men in private, held to be a breach of Article 8.
• In Malone v UK (1984) 7 EHRR 14, and Halford v UK (1997) 24 EHRR 523 telephone interception infringed Article 8 because there was no adequate legal basis for it

Article 10 (Freedom of Expression)

• Sunday Times Ltd v UK (1979) 2 EHRR 245 - an injunction restraining publication about the thalidomide litigation on contempt grounds infringed Article 10
• Handyside v UK (1976) 1 EHRR 737 - applying the law on obscene publications to The Little Red Schoolbook did not breach Article 10
• Observer and Guardian v UK (1991) 14 EHRR 153 and Sunday Times v UK (No. 2) - continuing restrictions on reporting the contents of a retired security officer’s book after its publication in the USA violated Article 10
• 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 journalist at the Daily Mail was denied a pay rise because he would not sign an individual contract giving up collective bargaining. By permitting employers to use financial inducements to undermine union representation, the UK breached Article 11

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 relevant judgments, decisions, declarations 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. Strasbourg judgments are not binding precedents in domestic proceedings, although UK courts will normally follow clear and consistent Strasbourg case law.

When considering an interference with a qualified Convention right, the ECtHR and the UK courts must take account of the principle of proportionality. The interference must have a legal basis, pursue a permitted aim and be proportionate to that aim. An absolute prohibition such as Article 3 cannot be balanced against a public interest.

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 so far as it is possible to do so, unless Parliament has expressly excluded that duty. The interpretation must respect the fundamental features of the legislation (Ghaidan v Godin-Mendoza [2004] UKHL 30). 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.

Since 24 November 1998, the minister in charge of a Bill in either House must, under section 19, make a written statement before second reading. The minister must state either that the Bill is in their view compatible with Convention rights or that they cannot make that statement but the government nevertheless wishes the House to proceed.

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. Where the incompatibility is in subordinate legislation, a declaration is available only if the parent legislation prevents its removal. Otherwise an incompatible regulation may be disapplied (RR v Secretary of State for Work and Pensions [2019] UKSC 52).  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 Court Martial Appeal Court
3. The High Court of Justiciary when sitting otherwise than as a trial court
4. The Court of Session
5. The High Court
6. The Court of Appeal
7. The UK Supreme Court
8. The Court of Protection when the matter is heard by the President of the Family Division, the President of the Business and Property Division or a puisne judge of the High 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. Section 6(2) provides a defence where primary legislation left the authority no alternative or the authority was giving effect to or enforcing an incompatible provision of or made under primary legislation which could not be read compatibly. 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 with functions of a public nature. For a body covered only because some of its functions are public, section 6(5) excludes acts of a private 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 person who is or would be a victim of an unlawful act to bring proceedings against an authority in an appropriate court or tribunal, or to rely on the Convention right in existing proceedings. Section 7(5) requires a claim brought under section 7(1)(a) to be brought within one year of the act complained of, or a longer period if the court or tribunal considers it equitable, subject to any stricter procedural time limit. Under section 7(7), victim status has the same meaning as under Article 34 ECHR.

Section 8 Human Rights Act 1998 - Remedies

Once a breach of a Convention right by a public authority is established, section 8(1) allows the court to grant relief within its powers that it considers just and appropriate. Depending on the court, the available remedies include damages, declarations, injunctions, quashing orders, mandatory orders, and prohibiting orders. Only a court with power to award damages or compensation in civil proceedings may award damages, and only where necessary to afford just satisfaction, taking other relief into account. Section 9 restricts proceedings and damages in respect of judicial acts.

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