human rights

Human Rights Act 1998

The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on November 9, 1998, and mostly came into force on October 2, 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. It also totally abolished the death penalty in UK law (although this was not required by the Convention in force for the UK at that time).

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is to issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). An individual can still take his case to the Strasbourg court as a last resort.

Jurisdiction

The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. It also includes the Courts. However, it does not include Parliament when it is acting in its legislative capacity.

Stronger provisions exist for the devolved Scottish administration under the Scotland Act 1998, which provides that the Scottish Executive and the Scottish Parliament have no power to do anything contrary to the ECHR.

Rights protection under the Act

The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights.[1] For these purposes public authority includes any other person "whose functions are functions of a public nature."[2] It also explicitly includes the Courts.[3] Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1).[4] In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights.[5]

Section 7 enables any person, with standing, to raise an action against a public authority which has, or proposes to act, in such a Convention contravening manner. A person will have standing to do so provided they would satisfy the "victim test" stipulated by Article 34 of the Convention.[6] This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, Judicial Review.

If it is held that the public authority has violated the claimants Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate."[7] This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.[8]

However, the Act also provides a defense for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.[9] The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights."[10]

Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it.[11] The power to do so is restricted to the higher Courts.[12] Such a Declaration has no impact upon the continuing force of the legislation[13] but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.

Footnotes

1. ^ Section 6(1)

2. ^ Section 6(3)(b)

3. ^ Section 6(3)(a)

4. ^ The full text of Schedule 1 (along with that of the rest of the Act) can be found at the Office of Public Sector Information Website:

5. ^ Section 2

6. ^ Section 7(7)

7. ^ Section 8(1)

8. ^ Cf. sections 8(2)-(5) and Section 9(2)-(3) which provides additional protection to the Courts.

9. ^ Section 6(2).

10. ^ Section 3(1)

11. ^ Section 4

12. ^ Section 4(5) provides that a Declaration of Incompatibility can be made by: the House of Lords, the Judicial Committee of the Privy Council. In England, Wales and Northern Ireland by the Court of Appeal or the High Court. And in Scotland by the High Court of Justiciary, when not sitting as a trial court, or the Court of Session. The power is also available to the Courts-Martial Appeal Court.

13. ^ Section 4(6)(a)

14. ^ Section 10(2)

15. ^ Cameron 'could scrap' rights act