The Human Rights Act 1998 (HRA) came into force in the UK on 2nd October 2000, ‘giving further effect’ to the the European Convention on Human Rights (ECHR) and the articles under it within the UK. Whether the effects of this Act have overall been positive or negative has been a hot-topic in politics for quite some time. Those praising the effect of the Act usually argue that it has offered us as people in Britain the opportunity to better protect our freedoms and rights against those who are supposed to care for such things. Those who feel it has a negative effect often argue it is unconstitutional and its scope is far too wide, allowing people to claim human rights that they shouldn’t be allowed to claim (missing the definition of a human right therefore). So, briefly, I’m going to take you through where it came from, what it represents and what its scope is…
Where did the ECHR come from?
The ECHR was drafted by the Council of Europe (CoE) in 1950 (ie soon after the Universal Declaration of Human Rights (UDHR) was introduced by the UN) in Rome by all 47 CoE members at the time. In the original document, the reason given for drafting the document was:
“…the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of Human Rights and Fundamental Freedoms“
Obviously this Convention closely followed World War Two where freedoms and liberty were seriously threatened by Nazism – hence the swift response to such a threat, in an effort to stem any attempts to commit similar actions from power-hungry states in the future. The CoE hoped it would help all of their members avoid such terrifying circumstances again and ensure those forming the CoE were properly caring for their citizens. It was drafted by the members themselves, who all came to an agreement about what should be included as a right or freedom that its citizens should certainly enjoy.
How did the UK come to make it part of their legal framework?
The UK was one of the original CoE members signing the Convention in 1950. However, British people couldn’t expressly enjoy the benefits of the Convention until the 1960’s, when they were first allowed to bring a claim to the European Court of Human Rights. In the years to follow, commentators began to question whether the level of protection being offered here was sufficient, or whether to truly ensure the benefits of the Convention were felt, it should be introduced into our national legal framework. After some debate about whether or not to enshrine it in to British law, the Labour Party headed by Tony Blair pledged to introduce the European Convention into our legal framework through an Act of Parliament – if they won the election. As we now know, Blair duly won the 1997 general election and the Human Rights Act was introduced into domestic law – allowing us to remedy breaches here in Britain, rather than only in Strasbourg.
What is the Human Rights Act’s scope?
The Act’s scope is often hotly-contested between those in support and those who aren’t. I’m going to break it up into:
- What law does it cover?
- Who can we use it against?
What law does it cover?
To put it simply, the Act ensures the Court interprets legislation (both primary and secondary) and case law in line with the Convention rights “so far as it is possible to do so” (Section 3, Human Rights Act 1998). Therefore, this does not mean our judges HAVE to abide by the decisions of the European Court of Human Rights – it simply means they should do all they can to ensure the Court’s definition of a right is properly protected and a sufficient remedy is in place if it has not been protected for on of its citizens.
Many critics of the Act suggest that this interpretation of the Act weakens our Parliamentary Sovereignty (ie our government’s ability to rule our country) and in fact, this is one of the main reasons the government is currently looking to replace the Human Rights Act with a ‘British Bill of Rights’. However, you should note that there is no mention of an obligation to apply the European Court’s judgments – in fact the Act is very careful to protect Parliamentary Sovereignty. Section 3 of the Act expressly states that even if interpretation of the rights is incompatible with our law, it does not effect the validity of primary legislation (although courts can strike down secondary legislation). Instead, the courts can merely apply a declaration of incompatibility (Section 4). This means they are notifying the government (aka the executive) of the incompatibility, but once again, this has no effect on the actual validity of that law and the government is not obliged to change it.
So, in terms of its scope, the Act certainly provides more power, as the courts interpret the rights into national law. However, it is also not such a great scope that our judiciary is obliged to apply the rights as the European Court of Human Rights applies them.
Who can we use it against?
Another limitation of the scope of the Human Rights Act is potentially who you can claim a breach of your rights against. According to the Act itself, it only has “vertical effect”. This means challenges can only be brought against public authorities (so groups/organisations such as the NHS, the Government or the Police). However, this is not quite as restricted as it may first seem – ‘public authority’ has been defined widely, so its scope here is actually quite great, with courts ruling it includes private organisations who carry out public work, like Rail companies for example. So what if you want to bring a claim against a private organisation with no public link, or a person not working for a public authority? Well, even this doesn’t necessarily restrict the effect of the Act, as the courts are supposed to interpret the rights afforded to us into all of its judgments and decisions, therefore it shall be judged there (this is due to the courts being a public authority and therefore having to protect citizen’s rights AND WE COME FULL CIRCLE).
The Human Rights Act is a piece of legislation aiming to best protect our freedoms and rights in the UK, from being infringed by public authorities, all under the watchful eye of the European Court of Human Rights. Whether or not it is the best way to protect us, is a debate many have had, are having and will have far into the future. But, at the moment, this is what we have and how its works!
So, there it is, a VERY brief introduction to the Human Rights Act 1998. If you have any more questions, let us know and we’ll answer ASAP. In the meantime, enjoy your evenings and we’ll be back tomorrow with a description of the Article 2 right to life! Follow on Facebook and Twitter to keep up with the new series.