The Human Rights Act 1998

12 Key excerpts on "The Human Rights Act 1998"

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  Unlocking Constitutional and Administrative Law

  • Mark Ryan, Steve Foster(Authors)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  17

  The Human Rights Act 1998

  DOI: 10.4324/9781003262138-17

  AIMS AND OBJECTIVES At the end of this chapter you should be able to:

  • Appreciate the constitutional and legal significance of The Human Rights Act 1998 and why it was passed
  • Appreciate the role of the law in protecting human rights before the Act was passed and how the Act has impacted on that role
  • Understand the central provisions of the Act and appreciate how the Act impacts on the protection of human rights in the United Kingdom
  • Be aware of the essential case law decided under the Act and appreciate whether and how such case law has achieved the Act’s purpose
  • Be aware of recent proposals for reform of the Act and its replacement with a domestic Bill of Rights; including any impact of Brexit on the Act and any likely reform

  17.1 Introduction

  The Human Rights Act 1998 came into effect on 2 October 2000 and, while it does not strictly incorporate the European Convention into domestic law, it allows the courts to give ‘further effect’ to the Convention rights and to take Convention rights and case law into account when interpreting and developing domestic law. As a consequence individuals can now rely directly on Convention rights in the domestic courts.

  Before the Act the courts could only give indirect effect to the Convention (eg where an Act of Parliament was ambiguous (R v Home Secretary, ex parte Brind [1991] 1 AC 696)), and they could not apply Convention rights where the domestic law did not recognise that right (Malone v Metropolitan Police Commissioner [1979] Ch 344 – an individual could not claim that telephone tapping was in violation of Art 8 of the Convention, guaranteeing the right to private life).

  The Act builds on and enhances the traditional method of protecting civil liberties (see section 17.2

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  Q&A Civil Liberties & Human Rights 2013-2014

  • Helen Fenwick, Richard Glancey(Authors)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  8 The Human Rights Act 1998 and the European Convention on Human Rights INTRODUCTION The Human Rights Act (HRA) 1998 has at the time of writing been in force for over fifteen years (it came into force in 2000), so it is possible to make an interim but fairly tentative assessment as to its efficacy in protecting human rights and freedoms in the UK. It affords further effect to a number of the rights protected under the European Convention on Human Rights. It remains a controversial piece of legislation; for example, in 2006 parts of the media blamed it for weakening the UK in its ‘war’ against terrorism, and for the early release of criminals. The criticism was misleading, since even if the HRA was repealed, the UK would remain bound at international level to abide by the European Convention on Human Rights. The Conservative Party has stated that its policy is to repeal the Act and to replace it with a ‘modern British Bill of Rights’, and indeed, in March 2011 it established the Commission on a Bill of Rights to specifically look into this matter. It is not possible at the time of writing to confidently predict what the conclusions of the Commission are going to be. One key difficulty preventing this is that its terms of reference were vague, merely saying they have been charged to investigate the creation of a Bill of Rights that incorporates and builds on the UK’s obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends liberties. Their terms are therefore very vague and generic, which merely raises more questions than it is possible to answer at this moment in time

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  Parliamentary Bills of Rights

  The Experiences of New Zealand and the United Kingdom

  • Janet L. Hiebert, James B. Kelly(Authors)
  • 2015(Publication Date)
  • Cambridge University Press

    (Publisher)

  PART II The United Kingdom’s Human Rights Act 1998 6 Political Origins of the Human Rights Act The United Kingdom’s Human Rights Act (HRA) is the product of a conscious attempt to envisage the protection of rights occurring in a less court-centred manner than is usually associated with a bill of rights, where courts are given authority to impose binding constraints on legislation. The HRA came into effect in 2000 and authorizes a domestic judicial role that significantly exceeds that which had earlier existed. Before this, judges could protect rights through their interpretation of the common law but parliament was not required to justify legislation before domestic courts in terms of its consistency with Convention rights. Although the UK ratified the European Convention of Human Rights (EHCR) in 1951, and accepted the jurisdiction of the Court of Human Rights with respect to individual complaints in 1966, 1 UK courts were unable to rely directly on Convention rights in domestic proceed- ings prior to the HRA’s enactment. 2 The HRA allows citizens to challenge legislation for violating Conven- tion rights in domestic courts while withholding a remedial power for judges to set aside inconsistent legislation. If judges deem legislation to be inconsistent with Convention rights, when possible they can rely on their interpretive powers to construe and interpret the scope or effects of legislation in a rights-compliant manner, or they can engage a new power to declare that legislation is incompatible with protected rights. However, parliament retains authority for determining the legality of legislation and can respond to a judicial declaration of incompatibility by either maintaining the legislation as is, or passing remedial measures to give effect to judicial concerns. If a court alters the scope or effects of legislation in the effort to interpret it in a rights-compliant manner, 1 D.

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  Your Rights

  The Liberty Guide to Human Rights

  • Megan Addis, Penelope Morrow(Authors)
  • 2005(Publication Date)
  • Pluto Press

    (Publisher)

  James Welch 1 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 know something about the history of the Convention. 1.1 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.

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  Q&A Public Law

  • Richard Glancey(Author)
  • 2014(Publication Date)
  • Taylor & Francis

    (Publisher)

  3 The Human Rights Act 1998 INTRODUCTION

  The Human Rights Act 1998 (HRA) does not provide the only means of protecting human rights and liberties in the UK, but it is the central piece of legislation in the field. The Act has now been in force for 14 years (it came into force in 2000), so it is possible to make an interim assessment as to its efficacy in protecting human rights and freedoms in the UK. It affords further effect to a number of the rights protected under the European Convention on Human Rights (ECHR) . It remains a controversial piece of legislation; for example, in 2006, in a distorted and misleading fashion, parts of the media blamed it for weakening the UK in its ‘war’ against terrorism, and for the early release of criminals. Prior to the 2010 general election the Conservative Party stated that its policy was to repeal the Act if a Conservative Government was elected, and to replace it with a ‘British Bill of Rights’. Once the current Coalition Government was in place, this policy became problematic since the Liberal Democrats were pledged to retain the HRA . An independent Commission was appointed to examine the possibility of repealing the HRA and introducing a Bill of Rights in its place. The intention appears to be to ensure that a new Bill of Rights provides as much protection for human rights as the HRA does. It is likely that there will be a long period of consultation before such a Bill of Rights is put in place. If – which remains a matter of doubt – eventually a Bill of Rights is enacted, it would presumably protect the Convention rights that are currently protected under the HRA , so the respect in which it would sharply differ from the HRA is currently unclear. It might be made weaker than the HRA in certain respects – for example, s 3 HRA might be reproduced in the new statute, but modified to discourage judges from taking a radical approach to rendering statutory provisions compatible with Convention rights through creative interpretation. It is also possible that s 2 HRA

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  Unlocking Human Rights

  • Peter Halstead(Author)
  • 2014(Publication Date)
  • Routledge

    (Publisher)

  4.  Increased lobbying gradually persuaded the then opposition to resolve to ‘bring rights home’, i.e. to make them enforceable under domestic law within the UK when all other remedies had been exhausted.

  5.  The Human Rights Act 1998 gave UK subjects access to the European Court of Human Rights from 2 October 2000. 6.  The Act comprises 22 sections and four schedules and should be interpreted in a purposive manner. 7.  Ministers introducing all new legislation must certify it conforms to Convention requirements or provide an explanation as to why it does not do so. 8.  Senior judges have the power to make declarations of incompatibility regarding non-conforming law which effectively forces government to amend the law. 9.  Public authorities are required and can be obliged to act in conformity with the Convention. 10.  The Act has proved to be neither the disaster that opponents forecast nor the panacea for which supporters hoped.

  Useful resources

  Office of Public Sector Information text of the HRA 1998: www.opsi.gov.uk/ACTS/actsl998/ukpga_19980042_en_l .

  Department of Constitutional Affairs: Table of s4 incompatibility cases: www.dca.gov.uk/peoples-rights/human-rights/pdf/decl-incompat-tabl.pdf .

  Further Reading

  Bennion, Francis, ‘What Interpretation is “Possible” under Section 3(1) of The Human Rights Act 1998?’ PL 2000, Spring, 77–91.

  Clayton, Richard, ‘The Limits of What’s “Possible”: Statutory Construction under the Human Rights Act’, EHRLR 2002, 5, 559–566.

  Edwards, R A, ‘Generosity and the Human Rights Act: The Right Interpretation?’ PL

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  Judicial Reasoning under the UK Human Rights Act

  • Helen Fenwick, Gavin Phillipson, Roger Masterman(Authors)
  • 2007(Publication Date)
  • Cambridge University Press

    (Publisher)

  PART I The interpretation of The Human Rights Act 1998 2 The European Convention on Human Rights and the Human Rights Act: the view from the outside C O L I N W A R B R I C K * Introduction When, in the Human Rights Centre, we were first contemplating the ways in which cases under the Human Rights Act (HRA) were being (and should have been) disposed of, it was clear that we had different, in some cases, quite different, conceptions of what the HRA was about and what we could expect from UK judges in applying it. These differences were not restricted to more or less liberal views about what human rights were, or how human rights should be protected in the UK, but about whether the HRA was just another example of a domestic statute implementing the UK’s treaty obligations or whether it had the capacity to go beyond the protection of a minimal/minimum understanding of human rights and fundamental freedoms as protected by the European Convention on Human Rights (ECHR) to provide some substitute for the ‘missing’ Bill of Rights in the British constitution. I approach this matter as an international lawyer, and I take it that, at least, ‘Bringing Rights Home’ 1 meant improving UK co-operation with the ECHR system by providing a better means for resolving disputes about the meaning and application of the ECHR in the UK legal system. (I do not discuss here the matter of whether or not the HRA could or should provide more – or even different – protection than the ECHR requires, except to assert in a ‘constitutional lawyer-in-pub’ sort of way that, as a matter of principle, I doubt that the process for enacting the HRA was appropriate to the creation of a Bill of Rights and I am * Parts of this chapter are based on the inaugurating lecture for the Durham Human Rights Centre, ‘Human Rights: International, European, English’, which I gave in October 2001. 1 ‘Rights Brought Home: The Human Rights Bill’, Cm. 3782 (1997), paras. 1.18 and 1.19. 25

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  Balancing Liberty and Security

  Human Rights, Human Wrongs

  • Kate Moss(Author)
  • 2011(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  61 3 The Context of the European Convention on Human Rights and The Human Rights Act 1998 This chapter illustrates contemporary European safeguards for Human Rights and Civil Liberties with specific reference to the nature and pur- pose of the European Convention on Human Rights (ECHR) which took effect in 1953 with the objective of avoiding the atrocities and abuses of human rights that had taken place in World Wars I and II. It does not form part of UK law but has developed as a separate system of jurispru- dence with its own institutions and procedures. There has been a clear expectation of compliance with the ECHR since 1953 and currently, a theory of State obligation 1 has developed whereby member states have to do more than just be seen to comply. In the UK, The Human Rights Act 1998 gives ‘greater effect’ to Convention Rights in two main ways; first, by making it clear that as far as possible the courts in this country should interpret domestic law in a way that is compatible with Convention Rights and second, by allowing people the right to take court proceed- ings if they think that their Convention Rights have been, or are going to be, breached. This chapter will also assess the relevance of the legal doctrine of the ‘Margin of Appreciation’ which reflects the ideal that there should be maximum compliance from all parties about the gen- eral standards that the convention sets and the relevance of the legal ‘Doctrine of Proportionality’ which is a way of testing whether member states’ actions are compatible with convention standards. The origin of the ‘human right’ In terms of the development of basic human rights, two philosophers in particular were influential – John Locke and Thomas Paine. John Locke, 62 Balancing Liberty and Security who would go into exile for his ideas, was writing at the time of signifi- cant constitutional change in the UK; changes which culminated in the Bill of Rights 1689.

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  Understanding Legislation

  A Practical Guide to Statutory Interpretation

  • David Lowe, Charlie Potter(Authors)
  • 2018(Publication Date)
  • Hart Publishing

    (Publisher)

  10 Impact of The Human Rights Act 1998: Sections 3 and 4 10.1 The introduction of The Human Rights Act 1998 (HRA 1998), which came into force on 2 October 2000, has had an important and extensive impact on the interpretation of domestic legislation. 10.2 That is because section 3 of the HRA 1998 creates a powerful rule that requires legislation to be interpreted and given effect, where necessary and so far as possible, compatibly with certain rights under the European Convention on Human Rights (ECHR). This provision has far-reaching consequences for the courts’ reading of certain legislative provisions, empowering them to do far more than they could through the application of ‘ordinary’ principles of statutory con-struction alone. 10.3 However, even applying section 3, it may still not be possible for all legisla-tion to be read compatibly with the relevant Convention rights. In those cases, depending on the nature of the relevant legislation, section 4 may permit the higher courts to make a ‘ declaration of incompatibility ’ in respect of the incompat-ible legislation, which will then allow Parliament to address the incompatibility as it sees fit. Section 3 The Interpretive Obligation in Section 3 10.4 Section 3(1) of the HRA 1998 (headed ‘Interpretation of legislation’) pro-vides that: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the 188 Impact of The Human Rights Act 1998 1 For a more detailed discussion of the interpretive obligation under section 3, see Jack Beatson et al, Human Rights: Judicial Protection in the United Kingdom (London, Sweet & Maxwell, 2008) paras 5-64– 5-127, 486–510.

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  The New Law of Peaceful Protest

  Rights and Regulation in the Human Rights Act Era

  • David Mead(Author)
  • 2010(Publication Date)
  • Hart Publishing

    (Publisher)

  2 Protecting Human Rights in the Human Rights Act Era This chapter offers an explanation, in very broad terms, of how human rights have been and are protected in domestic law. Our review will commence with a reflection on the United Kingdom’s common law heritage in which the concept of positive ‘rights’ was alien. In this, until the dying days of the last millennium, we were out of kilter with mainland Europe (as well as large numbers of other states), where citizens largely had constitutional rights, judi-cially enforceable in their own courts. For many of those states, this meant doing no more than enshrining in domestic law the protection given by the ECHR. The provisions of the ECHR and some of its underpinning and overarching jurisprudence are the focus of the second part of the chapter. We shall analyse in detail the case law of the European Court of Human Rights at Strasbourg on the right to peaceful protest (under Articles 10 and 11) in chapter three. The final part of this chapter outlines the scheme of The Human Rights Act 1998 (HRA) to see how that right, in the words of the accompanying White Paper, has been ‘brought home’. Having looked at its key terms, to gauge at a general level how the HRA operates, the chapter will conclude with a scene-setter for chapters four to eight. By look-ing at a few examples, we shall see the means by which English law is now able to protect the right to peaceful protest. The scope and extent of that protection forms the remainder of the book. What will be clear in this chapter, and this cannot be stressed strongly enough, is that there is now a fully-fledged right to protest. It encompasses aspects of the rights of free speech under Article 10 and peaceful assembly contained within Article 11. We shall explore its limitations at Strasbourg level in the next chapter. This marks, as we shall soon see and as was alluded to in our introduction, a sea-change in legal thought in the UK.

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  Human Rights Lawcards 2012-2013

  • Routledge(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  The Human Rights Act 1998  

  Section 1
  Incorporation of the Articles
  What Articles are omitted from HRA 1998?
  How have the courts interpreted the HRA?
  Positive and negative obligations
  Absolute and qualified rights
  Derogations

  This chapter looks in detail at the British ‘model’ of incorporation of the European Convention on Human Rights (ECHR) , as implemented by the Human Rights Act (HRA) 1998 . The chapter begins with the basic principles underlying the Act and then moves onto the most important sections of the Act, using illustrations where relevant.

  INTRODUCTION

  As noted in Chapter 3 , the chosen approach to incorporation under the HRA 1998 is closer to the New Zealand model than the Canadian model. The Act adopts an ‘interpretative’ only approach and consequently the courts are not empowered to strike down incompatible primary legislation. The Lord Chancellor indicated that the intention was to learn from the experience of others but not to be constrained by it and that a ‘distinctively British approach for our British Parliament and British courts’ was to be adopted. There are a number of novel features in the British approach. The Lord Chancellor summed up the British model of incorporation as follows:

  The [Act] is based on a number of principles. Legislation should be construed compatibly with the Convention as far as is possible. The sovereignty of Parliament should not be disturbed. Where the courts cannot reconcile the legislation with Convention rights, Parliament should be able to do so - and more quickly if appropriate, than by enacting primary legislation. Public authorities should comply with Convention rights or face the prospect of legal challenge. Remedies should be available for a breach of Convention rights by a public authority.

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  International Human Rights Law and Domestic Violence

  The Effectiveness of International Human Rights Law

  • Ronagh J.A. McQuigg(Author)
  • 2011(Publication Date)
  • Taylor & Francis

    (Publisher)

  4  The Human Rights Act 1998 Could the United Kingdom courts rise to the challenge?

  The previous chapter outlined the potential held by the case law of the European Court of Human Rights on positive obligations to contribute to the fight against domestic violence. Although there are limitations on this potential, nevertheless the European Court has developed jurisprudence that could be used beneficially in this area. Governments have been repeatedly reminded that not only must they refrain from violating human rights standards, they also have duties to take positive steps to ensure that the rights of individuals are protected effectively. The European Convention has been incorporated into UK law by The Human Rights Act 1998.1 However, could the UK courts rise to the challenge and use Convention rights to assist victims of domestic violence?

  This chapter will refer to the issues raised in Chapter 1 of the book. The issue of the public/private divide will be examined through a discussion of the horizontal effect of the Human Rights Act. The problem of conflicting rights is brought into focus by the difficulty of alleged perpetrators relying on human rights law. Problems surrounding the implementation of rights are highlighted by the issue of deference; the limits on what courts can achieve and difficulties surrounding socio-economic rights; and questions relating to the ability of law to deal with an ‘unseen’ crime. Essentially, the chapter will examine whether the UK courts could use the Human Rights Act to achieve the three categories of measures that are most highlighted by commentators in the UK as being necessary in the area of domestic violence – improvements in the criminal justice system, the provision of social support measures for victims, such as refuge accommodation, and the implementation of awareness raising programmes (see Chapter 2).

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