- ‘Absolute rights’ are not limited or qualified in any way, and they cannot be lawfully infringed irrespective of how necessary a case might seem.
Only two rights (the rights not to be tortured and not to be enslaved) are absolute, the rest are limited or qualified.
The HRA, as acts of parliament go, is actually very short, especially given its importance, and breaks down into 22 sections, and yet this disguises the detail and its constitutional implications. Here are some of the key ones:
ARTICLE 1 THE CONVENTION RIGHTS AND FREEDOMS
ARTICLE 2 RIGHT TO LIFE
ARTICLE 3 PROHIBITION OF TORTURE
ARTICLE 4 PROHIBITION OF SLAVERY AND FORCED LABOUR
ARTICLE 5 RIGHT TO LIBERTY AND SECURITY
ARTICLE 6 RIGHT TO A FAIR TRAIL
ARTICLE 7 NO PUNISHMENT WITHOUT THE LAW
ARTICLE 8 RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE ARTICLE 9 FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION
ARTICLE 10 FREEDOM OF EXPRESSION
ARTICLE 11 FREEDOM OF ASSEMBLY AND ASSOCIATION
ARTICLE 12 RIGHT TO MARRY
ARTICLE 14 PROHIBITION OF DISCRIMINATION
ARTICLE 16 RESTRICTIONS ON POLITACAL ACTIVITY OF ALIENS
ARTICLE 17 PROHIBITION OF ABUSE OF RIGHTS
ARTICLE 18 LIMITATION ON USE OF RESTICTIONS OF RIGHTS
Given the long history of the U.K.’s compliance with the ECHR, the act is merely giving fuller effect to existing rights and freedoms.
b) Explain and discuss one aspect of the HRA or Convention which you think will have or has had an important effect in the past year.
In this part I am hoping to highlight some its main features of the act. Probably the most significant section of the Human Rights Act 1998 is section 6, the right to a fair trail, which states that "it is unlawful for a public authority to act in a way which is incompatible with a convention right." This section ensures that all public authorities are legally bound by the European Convention. Meaning that, for the first time, residents can be sure to get treated completely fairly by these authorities, with avenues for legal action if they are not. The case shown below, taken from , is a good example of this:
With regard to Article 6 there are two questions which must be asked at this point:
- What articles of the European Convention are public authorities bound by?
- What is the definition of a public authority?
In relation to the first question, the 1998 Act does not put into practice all Articles of the Convention. The Convention has 13 principal articles (Articles 2 to 14) but it also includes a number of Protocols, which have been added on. At a basic level the distinction between Articles and Protocols is that countries who sign up to the European Convention (which is a prerequisite for joining the Council of Europe) must accept all the Articles whereas the protocols are optional.
The Human Rights Act implements 12 of the 13 principal Convention articles. The one article it does not implement is Article 13, which provides for the right to an effective remedy for breaches of the Convention. That is not to say that UK citizens do not have this right, because they do, nothing in the 1998 Act prevents anyone going to the European Court of Human Rights. The government’s argument for not including Article 13 in the Act is that the Human Rights Act 1998 is basically Article 13 itself, so in essence the Act simply puts in place measures whereby a person can gain a remedy for breaches. This is true, or at least it is partly true. Many commentators on the issue believe that whilst the Act does provide this system, there is more to Article 13 than that. However this is something that the courts and government will have to keep under constant review.
In relation to the second question (the definition of a public authority), this is defined in section 6 as any person or body which exercises a public function. This expressly includes the courts but expressly excludes Parliament, except when the House of Lords sits as the final court of appeal. The reason why it applies only to public authorities is that the Human Rights Act 1998 does not incorporate the Convention into domestic law, although many say it does. If the Convention was to be incorporated into law then it would become part of UK law and anyone could use it. What the Act is supposed to do is to make it easier for citizens to claim under the Act.
The government talked about "bringing rights home" because the idea was that actions could be taken in the domestic courts instead of the European Court of Human Rights. The Convention itself is a treaty and so it provides for a remedy between the citizens and the state and has never been considered to apply between citizens.
That said, one interesting question that could arise as a result of the definition of a public authority is that we could get so-called ‘horizontal effect’ (an action between the state and an individual is known as ‘vertical effect’ and an action between an individual and another individual is ‘horizontal effect’). The reason why such an effect may arise is because the court is a public body. Thus a court is bound to uphold the convention. Whenever a citizen sues another citizen then the matter would come before the court, and therefore the court would have to apply the Convention, it is here that Article six has an important effect. Others argue, however, that this is a simplistic way of applying the Convention and would be contrary to the intention of Parliament
I think it is fair to say that over the last twelve months the HRA has become an important piece of legislation, it has enabled many people to overcome certain hitherto challenging problems.
c) Explain how you went about your research, and why you chose your topic.
Once I had received the essay title I gathered together notes from tutorials and lectures relating to the ECHR and HRA. With all this information I could revise the topic in order to gain a feel and direction for the essay.
Next I visited the library where I located several books on the topic with which I could begin to gain an understanding not only of the effect and history of the HRA, but also the key areas that are affected by the changes brought about by the HRA.
Lastly I gained information from the Internet by using search engines and browsing through sites to gain more up-to-date information relating to the HRA.
Bibliography:
- Family Law and the Human Rights Act 1998, H. Swindells
- Criminal Justice and the Human Rights Act 1998, D. Cheney
- Employment Law and the Human Rights Act, R. Allen
- European Human Rights Law, the Humans Right Act 1998 and the European Convention on Human Rights, K. Starmer