Human Rights Act 1998

12 Key excerpts on "Human Rights Act 1998"

• 

  eBook - PDF

  Discourse Theory in European Politics

  Identity, Policy and Governance

  • D. Howarth, J. Torfing, D. Howarth, J. Torfing(Authors)
  • 2004(Publication Date)
  • Palgrave Macmillan

    (Publisher)

  6 The Human Rights Act: Politics, Power, and the Law Anthony M. Clohesy Introduction In 1998, the Human Rights Act (HRA),l which incorporated the European Convention of Human Rights (ECHR) into British law, was passed by the United Kingdom Parliament, giving British citizens a form of protection taken for granted in virtually every Commonwealth country and Western democracy (Dyer, The Guardian, 12 November 1998). The Act, which some have argued is the most important constitutional development in Britain since the signing of the Magna Carta, is intended to deliver 'a modern reconciliation to the inevitable tension between the democratic right of the majority to exercise political power and the democratic need of individuals and minorities to have their human rights secured' (Klug, Singh, and Hunt, 1997, p. 2). Anyone living within the jurisdiction of the UK, regardless of citizenship or nationality, can claim the protection of the convention. If one is a victim, in other words, if one's rights have been or would be violated by a public authority, one can bring proceedings in any court or tribunal in the land. Provided someone can show that they are 'personally affected' by the decisions or actions of a public body they can bring a case for judicial review on convention grounds alone (Klug, Singh, and Hunt, 1997, p. 3). At first sight, this legislation represents something of an oddity in British politics in that it implies a significant shift of power from the executive. 2 Although, at the time of writing, the New Labour Government is keen to present itself as a modernizing force, committed to democratizing the British state, the evidence so far suggests that behind this apparent reformist zeal lurks a deeply conservative and centralizing instinct. Witness, for example, the initiatives of devolution, reform of the House of Lords, and the Freedom of Information Act.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  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

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  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

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Judicial Review & the Human Rights Act

  • Richard Gordon, Tim Ward(Authors)
  • 2013(Publication Date)
  • Taylor & Francis

    (Publisher)

  Chapter 1 The Human Rights Act

  DOI: 10.4324/9781843140368-1

  1.01 The central theme of this book is the relationship between the Human Rights Act 1998 and public law.

  1.02 This chapter provides an overview of the Act and a general discussion of the problems that it raises. In some instances, where a more detailed exposition is provided elsewhere, cross-references are given.

  1.03 The text of the Act itself is set out in Appendix 1, p 233.

  Introduction

  1.04 The preamble to the Human Rights Act states that its purpose is to ‘give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights' (emphasis added). On its face, the Act allows the raising of Convention issues to be raised only by the ‘victim’ of the unlawful acts (or proposed acts) of a public authority.1 Ordinarily, such acts would be challenged by way of judicial review. The scheme of the Act suggests, however, that the Convention will impact upon almost all types of litigation, including that between private parties, and will extend well beyond the confines of judicial review. It will revolutionise the Courts' approach to both statutory construction2 and development of the common law.3

  1 HRA 1998, s 7(1), (3), (7). See paras 1.12–2.19.

  2 See Ibid, ss 3 and 6, at paras 1.23–1.38.

  3 See Ibid, ss 2 and 6, at paras 1.15–1.22.

  The Rights Incorporated

  1.05 Section 1 of the Human Rights Act defines the term ‘Convention rights’. It provides:

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Islam, Crime and Criminal Justice

  • Basia Spalek(Author)
  • 2013(Publication Date)
  • Willan

    (Publisher)

  Anti-Muslim discrimination and hostility are prevalent in all areas of British society. The IHRC reports focuses upon four major areas of concern in terms of the human rights of Muslims: education, employment, media representations of Muslims and legal discrimination. Discrimination in the sphere of education affects Muslims on a number of different levels, from exclusion due to religious requirements (prayer needs, religious dress and appearance), to religious harassment and criminal acts. Many cases of discrimination have been cited within the sphere of employment – from applying for a job to dismissal for expressing religious identity through dress and appearance, to dismissal for observing prayer times and prayer days and to, again, harassment and intimidation. Media representations of Muslims can be regarded as a fundamental problem in that they portray negative stereotypes of Muslims (particularly in relation to terrorist attacks and violence, particularly in the aftermath of the 11 September attack on New York’s World Trade Center). In terms of legal discrimination, the report expressed concern that existing antidiscrimination legislation fails to take into account the problems faced by Muslims in many areas of life, in the main because such legislation deals with racial rather than religious discrimination. However, the potential importance of the Human Rights Act is acknowledged by the report, which is slightly optimistic about Muslims being able to use ‘Convention rights’ under the Act in an attempt to overcome the limitations of existing legislation.

  The Human Rights Act 1998

  The Human Rights Act 1998 introduces into British law the European Convention on Human Rights and Fundamental Freedoms (often referred to as the European Convention). This international document (which was drafted by the Council of Europe in 1950) was ratified by the UK in 1953. Since 1966 British citizens have had the right to petition the European Court of Human Rights in Strasbourg for violations of their substantive human rights under the articles of the Convention. Despite the difficulties involved in taking a case to the European Court (mainly in terms of access, cost and length of proceedings) the availability of a ‘remedy’ for human rights violations has had important implications for British citizens. This is particularly so as the European Convention, unlike other comparable international human rights instruments, gives the individual an opportunity to argue their case in front of a court rather than having to rely on a human rights organisation to investigate and report on his or her behalf. Although the Human Rights Act ‘brings rights home’, this right of individual petition still remains if the applicant has exhausted all domestic remedies.

  The Act directly ‘incorporates’ a number of fundamental rights and freedoms from the European Convention, which are referred to as ‘Convention rights’ (see Table 7.1

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  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.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  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.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  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.

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  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.

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  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)

  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).

  The Horizontal Effect of the Human Rights Act 1998

  The issue of whether the Human Rights Act would have horizontal effect certainly provoked a great deal of speculation. A somewhat heated debate developed on the question of whether the Act would have any effect between private individuals.2 As discussed in Chapter 1, the public/private dichotomy has caused great difficulties concerning the effectiveness of human rights law. However, it was also noted that human rights law has developed in such a manner as to create a range of ways in which it may now enter into the private sphere. Horizontal effect can arise either directly or indirectly. In jurisdictions such as South Africa, human rights obligations are placed directly on individuals. However, the European Court of Human Rights takes a more indirect approach whereby duties can be placed on the state to ensure that the rights of individuals are protected from violation by other private parties. Horizontal effect also arises in an indirect manner under the Human Rights Act. This was shown in cases such as Douglas, Zeta-Jones and Northern and Shell plc v Hello! Ltd.,3 Venables and another v News Group Newspapers Ltd and others4 and Campbell v MGN Ltd.5

  Sign up to read

  Learn more about book
• 

  eBook - ePub

  Text, Cases and Materials on Public Law and Human Rights

  • Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
  • 2020(Publication Date)
  • Routledge

    (Publisher)

  Protecting Human Rights in the UK. The 2015 Queen’s Speech included the promise that the new government would ‘bring forward proposals for a British Bill of Rights.’ This promise echoed the Conservative Party’s election manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ and entrust human rights decision-making to a Supreme domestic court while also repealing the HRA. The intention is also to publish ‘a draft British Bill of Rights and Responsibilities’ for consultation, in 2016, after the EU Referendum, with the professed intention of delivering ‘a coherent and comprehensive human rights regime in Britain’.

  The reason expressed in the 2014 document for seeking change is that ‘over the past 20 years, there have been significant developments which have undermined public confidence in the human rights framework in the UK.’ It states that the European Court of Human Rights has developed ‘mission creep’ on the basis that Strasbourg adopts ‘a principle of interpretation that regards the Convention as a living instrument’.

  The document makes no reference to findings of the Bill of Rights Commission set up under the previous Coalition Government.285 The Commission delivered its Report—A UK Bill of Rights?—The Choice Before Us—to the Government in December 2012. The Report was unsurprisingly affected by the lack of agreement between the Liberal Democrats and the Conservatives in government at the time—and on the Commission—as to the role that any human rights instrument in Britain should play. The Coalition partners appeared to want it to play two different roles—defending or attacking the Human Rights Act. The Commission’s membership was evenly split between Conservative and Liberal-Democrat nominees and obviously represented a compromise between the Liberal Democrats and the Conservatives.286

  Sign up to read

  Learn more about book
• 

  eBook - PDF

  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)

  This does not mean that the HRA is incidental to legislative decision- making. On the contrary, the HRA complicates political decision- making by emphasizing that notwithstanding how government defines and justifies the importance of its legislative agenda, Convention rights function as distinct yet often contested criteria against which legislation will now also be assessed – by vocal and influential parliamentary actors (principally the JCHR and the House of Lords), by civil liberties organ- izations, academic commentators and the media and ultimately by domestic and European courts. Thus, the HRA influences government behaviour by introducing an additional set of considerations that enter into a government’s strategic calculus about the vulnerability of its 392 the united kingdom’s Human Rights Act 1998 political agenda to defeat or change, and how to best to improve its chances of achieving its legislative and political goals. As we argued in Chapter 7, governments have a strong interest in ensuring that legislation is not unnecessarily vulnerable to judicial cen- sure, particularly when legal problems can be anticipated and rectified without significantly impacting upon the government’s legislative agenda. At the same time, governments might be strongly committed to legislative initiatives in which the risk of a negative judicial ruling cannot be mitigated without significantly altering the government’s legislative inten- tions. Risk aversion and risk-taking occupy either end of a continuum of political responses to governing under the HRA. We interpret government behaviour as frequently occupying the risk- taking end of this continuum. As we argued in Chapter 7, both Labour and Conservative-led coalition governments have appeared willing to introduce risky legislation.

  Sign up to read

  Learn more about book