THE HUMAN RIGHTS ACT 1998: AN OVERVIEW

The preamble to the Human Rights Act 1998 (HRA) describes it as 'an Act to give greater effect to rights and freedoms guaranteed under the European Convention on Human Rights' (the Convention). To understand the HRA you need to now something about the history of the Convention.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

The Convention was drafted after the Second World War. British lawyers and civil servants were heavily involved in its drafting. The United Kingdom (UK) signed up to the Convention in 1953 and was one of the first countries to do so. In all, 45 countries have now signed up to the Convention including most of the east European, former communist countries and several countries that were once part of the Soviet Union. The countries that have signed up to the Convention make up the Council of Europe. The Council of Europe is quite separate from the European Union.

The Convention is divided into 'articles'. Articles 2 to 14 set out the rights that are protected by the Convention. Over the years the Convention has been supplemented by a number of protocols that have been agreed by the Council of Europe. Some of the protocols just deal with procedural issues but some guarantee rights in addition to those included in the Convention. The UK has signed up to two of the protocols that guarantee additional rights (the First and Sixth Protocols) but not to the others (the Fourth, Seventh and Twelfth Protocols).

The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the Convention. It is based in Strasbourg, France and is made up of judges nominated by each of the countries that are members of the Council of Europe. Since 1966 people have had the right to bring cases against the British Government in the ECHR. Over the years there have been many cases in which the ECHR has found that the UK has breached the Convention. One reason that there have been so many findings against the British Government is that there was no way that people could get redress for breach of their rights under the Convention in the British courts. This and the fact that taking a case to the ECHR can take several years were major factors in persuading the new Labour Government to pass the HRA shortly after they came to power in 1997. Many people believe that the HRA is one of the major achievements of this government.

Because the Convention is now over 50 years old some of the language that it uses is quite outdated. However, the ECHR has often stressed that the Convention is a 'living instrument'. This means that as society and attitudes change, the ECHR will change and develop the way in which it interprets the Convention. The ECHR will, however, still tend to follow the precedents set by earlier cases - where it does not it will make it clear why it is not doing so. It is therefore important to look at past decisions of the ECHR. Moreover, the HRA requires the courts in this country to take the ECHR's past decisions into account when deciding cases under the HRA. The ECHR now posts its decisions on the internet: http://www.echr.coe.int/Default.htm

Information about the procedures followed by the ECHR and advice on how to apply to that court is set out at the end of this chapter.

The Rights Covered by the Human Rights Act 1998

Not all the rights set out in the Convention and its Protocols are incorporated into British law by the HRA. The HRA only incorporates the rights in Articles 2 to 12 and in Article 14 of the Convention, plus those in the First and Sixth Protocols. The incorporated rights are set out in the First Schedule to the HRA and are referred to as 'Convention rights'.

We will look at these Convention rights in more detail later.

The HRA does not incorporate Article 13 of the Convention. Article 13 provides that people whose rights under the Convention have been breached should have the right to effective redress. The Government did not include Article 13 in the HRA, as it took the view that the HRA itself would meet the requirements of the article by giving people the right to take proceedings in the British courts if they considered that their Convention rights had been breached.

HOW DOES THE HUMAN RIGHTS ACT WORK?

The HRA gives 'greater effect' to Convention Rights in two main ways:

* It makes it clear that as far as possible the courts in this country should interpret the law in a way that is compatible with Convention rights.

* It places an obligation on public authorities to act compatibly with Convention rights.

The HRA also gives people the right to take court proceedings if they think that their Convention rights have been breached or are going to be.

Interpreting the Law Compatibly

Parliament makes laws but it is the courts that have to interpret them. The HRA makes it clear that when they are interpreting legislation the courts must do so in a way which does not lead to people's Convention rights being breached. Moreover, the courts are now under a duty to develop the common law - the law which has been developed through decisions of the courts themselves - in a way that is compatible with Convention rights.

What Happens if the Courts cannot Read the Law Compatibly?

If the law is an Act of Parliament, the courts have no choice but to apply the law as it is, even though it breaches Convention rights. However, the higher courts (the High Court, the Court of Appeal and the House of Lords) have the power to make what is called a 'declaration of incompatibility'. This is a statement that the courts consider that a particular law breaches Convention rights. It is meant to encourage Parliament to amend the law, but the courts cannot force the Government or Parliament to amend the law if they do not want to.

A lot of law is not set out in Acts of Parliament but rather in secondary legislation. Secondary legislation is law made under the authority of an Act of Parliament. Rather that set out detailed provisions in an Act of Parliament, Parliament will frequently give the power to make detailed laws to a government minister. The Act of Parliament will give the minister the power to make law but the law itself will be set out in regulations or orders. For example, most social security law is set out in regulations rather than in Acts of Parliament.

Where the courts find that an item of secondary legislation is incompatible with Convention rights, they have the power to strike the law down or not to apply it. This applies to all courts, not just the higher ones. The only circumstance where this is not possible is where the secondary legislation merely repeats a requirement of an Act of Parliament.

Public Authorities

The HRA requires public authorities to act in a way that does not breach Convention rights. The HRA does not define the term public authority, but it is clear that bodies like the police, local councils and government departments and agencies are all public authorities. Private individuals and bodies will not be public authorities for the purposes of the HRA unless they are performing a public function. So, for example, a private security company that has a contract with the Government to transport prisoners to and from court will be a public authority for the purposes of the HRA (and therefore under a duty to respect Convention rights) when it is transporting prisoners but will not be when it is guarding private property under a contract with a private organisation.

The issue of whether a person or body is a public authority for the purposes of the HRA can be very difficult to determine. As there is no definition of a public authority in the HRA this is something that the courts have to decide on.

To find out how to determine whether a body is a public authority for the purposes of the HRA please click here

Taking Proceedings under the Human Rights Act 1998

Someone who believes that a public authority has breached their Convention rights, or is proposing to, can bring court proceedings against the public authority. A person can also raise a breach of their Convention rights as a defence in any court proceedings against them. In either case the person must be a 'victim' of the breach or potential breach, that is, someone who is directly affected by it. (This is a requirement that has its origins in ECHR caselaw - see the section on 'Taking a case to the European Court of Human Rights' below.)

Who may bring proceedings?

Section 7(1(a) of the HRA permits a victim of an act by a public authority which infringes a Convention right to bring proceedings in the appropriate court or tribunal. The concept of a victim has been quite liberally interpreted to include both direct victims, and potential victims where there is a real and personal risk of being directly affected by the violation (see Open Door case below).

Past applicants have included groups of individuals, trade unions, religious bodies and non-governmental bodies. Open Door and Dublin Well Woman v Ireland (1993) 15 EHRR 244 concerned an injunction imposed by the Irish courts preventing the dissemination of information to pregnant women on abortion facilities outside Ireland. Two abortion advice centres, which offered the banned advice, and two women wanting to receive the banned advice were considered victims and were able to bring a challenge using Article 10, freedom of expression.

Organisations thinking of taking a case should be aware that the victim test may rule out some applicants but not others. For example, in the case of Ahmed and Others v UK (2000) 29 EHRR 1, a complaint was made by the union UNISON concerning the restrictions on the political activities of local government officers. UNISON's complaint was considered inadmissible as the regulations in question did not affect the rights of the union as such. However, applications brought by individual local government officers who were affected by the regulations were declared admissible. Accordingly it is always advisable to include an individual applicant as a victim wherever possible.

Generally, a person bringing court proceedings against a public authority under the HRA will be seeking a declaration that the public authority has breached their Convention rights or is proposing to do so. If the breach is continuing they will also want an order that the public authority should stop acting in a way that breaches their Convention rights. They may also seek compensation, although the courts have made it clear that it is not always appropriate for them to award this.

When someone brings proceedings against a public authority for breach of their Convention rights, the public authority may be able to defend itself by saying that it had no choice but to act in the way that it did because it was required to do so by an Act of Parliament. Where this happens the most the person bringing the case may hope to achieve is a declaration of incompatibility.

In most cases the appropriate court proceedings to bring against a public authority under the HRA will be an application for judicial review. Court rules require an application for judicial review to be brought 'promptly' and in any event within three months of the decision or action being challenged. Where someone does not make an application for judicial review there is a one year time limit for starting proceedings.

Proceedings Against Private Individuals or Bodies

As private bodies and individuals are not required by the HRA to respect Convention rights, it is not possible to take proceedings under the HRA against them. This does not mean, however, that the HRA will not have an effect on court proceedings between private bodies or individuals. This is because the courts themselves are public authorities under the HRA and are also required to interpret existing laws and to develop the law in a way that is compatible with Convention rights.
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To find out more about the effect of the HRA on disputes between private individuals or companies, please click here

THE CONVENTION RIGHTS

Below we have set out the text of each of the Convention rights incorporated by the HRA, followed by a brief commentary.

Article 2: Right to Life

. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
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