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9.1.2 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. 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. The Human Rights Act 1998 was introduced by the previous Labour government. Since the Conservative party have taken power, both David Cameron and Teresa May have vowed to repeal the Human Rights Act 1998 and there has also been some discussion of withdrawing from the European Convention on Human Rights.

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.

Human rights at the international level have been referred to as 'generations' or 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 NationsInternational 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.

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.

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 like the European Communities Act 1972 is also 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 co-operation 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 on Human Rights (ECtHRs). 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 ECHR is generally accepted to be first generations 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.

Article 14 provides the basis upon 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.

Case in Focus A (and Others) v Secretary of State UKHL 56

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 possession, the right of 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 ECHR.
  • The Fifteenth Protocol - is not yet in operation.

ii. The Complaints Procedure

One important feature about the rights contained within the ECHR is that individual 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 on Human Rights.

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 main effect of this Protocol was to allow applicants to apply directly to the ECtHR.

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 6 months of the final decision
  • Any application that is manifestly ill-founded or an abuse of the individual right of application will be declared inadmissible (Article 35(1))
  • Cases may be struck out because the applicant has not suffered significant disadvantage (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.

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.

Article 2 cases, the UK was found to be in breach in:

  • McCann v UK (1995)
  • Jordan v UK (2003)
  • Pretty v UK (2002)

Article 3 cases:

  • Republic of Ireland v UK (1978)
  • Tyrer v UK (1978)
  • Soering v UK(1989)

Article 5 and Article 6 cases:

  • In X v UK (1981)
  • Brogan v UK (1988)
  • Caballero v UK (2000)
  • Murray v UK (1996)
  • V v UK (2000)
  • Steel and Morris v UK (2005)

Article 8 cases:

  • Dudgeon v UK
  • Malone v UK (1984) 7 and Halford v UK (1997)

Article 10 cases:

  • Sunday Times Ltd v UK (1979)
  • Handyside v UK (1976)
  • Observer, Guardian and Sunday Times v UK (1991)
  • Goodwin v UK (1996)

Article 11 cases:

  • Young, James and Webster v UK (1981)
  • Wilson v UK (2002)

Case in Focus Hirst v United Kingdom (No.2) 92005] ECHR 681, (2006) 42 EHRR 41

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, and there have also been a number of international institutions which have established multilateral human rights treaties.

Section 2 HRA 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.

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.

Case in Focus R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532 & Campbell v MGN [2004] 2 AC 457

Section 3 HRA 1998 - interpretation

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

Case in Focus: R v A [2002] 1 AC 45

Bills that are passed since the HRA 1998 came into force in 2000, the minister introducing the bill must issue a statement of compatibility’ that the bill is compatible with Convention rights.

Section 4 HRA 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.

Cases in Focus: Wilson v First Country Trust Limited (No.2) [2001] 3 WLR 42 & A and Others v Secretary of State from the Home Department [2005]UKHL 56

Section 6 HRA 1998

Section 6 provides the ability for the HRA 1998 to be 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).

Case in Focus L v Birmingham City Council [2007] UKHL 27

However, section 145 of the Health and Social Care Act 2008 now provides that a private care home providing services under contract with a local authority is now considered to be exercising "functions of a public nature" within s6 (3)(b) HRA 1998.

Section 7 HRA 1998

Section 7(1) HRA 1998 allows a prospective victim to bring proceedings against an authority in an appropriate court or tribunal. Victim means anyone affected by the act or omission that leads to the breach of the Convention right.

Case in Focus: Matthews v Ministry of Defence [2003] 1 AC1163

Section 8 HRA 1998 - Remedies

Remedies once a breach of a Convention right by a public authority is available, the remedies are included under Article 8(1).

Case in Focus: Marcic v Thames Water Utility [2004] 2 AC 42


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