Human Rights Act
The Human Rights Act: This act incorporated the European Convention on Human Rights (ECHR) into UK statute law, enshrining rights such as those to a fair trial, freedom from slavery and degrading treatment, and respect for privacy and family life. All future legislation had to be compatible with the ECHR. Judges could not strike down laws that were incompatible with it but could highlight such legislation for amendment by Parliament. The limitations of the Human Rights Act were demonstrated by the government's decision to 'derogate from' (declare an exemption from) Article 5, which gave individuals the right to liberty and security, in cases of suspected terrorism. The introduction in 2005 of control orders, which allowed the authorities to limit the freedom of movement of such individuals, highlighted the unentrenched nature of the act.
However, the HRA did not introduce any new rights. Its main provision is that courts should interpret all legislation (statutes and delegated legislation) in such a way as to be compatible with the Convention. The UK ratified the Convention in 1951 (it came into force in 1953) and British subjects have had the right of access to the European Court of Human Rights in Strasbourg since 1966.
The main impact of the HRA has therefore been that it has made the Convention substantially more accessible to UK subjects. Access to the Strasbourg court is very costly and extremely time-consuming. However, the HRA has brought the Convention to the forefront of UK politics, influencing both judicial decision-making and affecting the behaviour of all public bodies.
The Convention establishes a wide range of rights, including the following: • Right to life • Freedom from torture • Freedom from slavery or forced labour
• Right to liberty and security
• Right to a fair trial
• No punishment without trial
• Right to respect for private and family life
• Freedom of thought, conscience and religion
• Freedom of expression
• Freedom of assembly and association(including the right to join a tradeunion)
• Right to marry
• Freedom from discrimination(sex,race,colour,language,religion,andsoon)
• Right to education
• Right to free elections with a secret ballot.
The HRA is, nevertheless, a statute of a very particular kind. It does not constitute an entrenched bill of rights, and it cannot be used to overturn Acts of Parliament. It does not, therefore, invest the judiciary with the powers of constitutional judicial review. Nevertheless, when a court believes that legislation cannot be reconciled with Convention rights, it issues a ‘declaration of incompatibility’. This forces Parliament (or, in practice, the executive) either to revise the legislation in question and bring it into line with the Convention, or to set aside certain of its provisions through the process of ‘derogation’ (meaning the repeal or modification of a law).
The UK, for instance, derogated from Article 5 of the Convention, during 2001–05, in order to pass ‘tougher’ anti-terrorism legislation. As the HRA is not binding on Parliament, it may not be considered as ‘higher’ law. Rather, it hovers somewhere between an ordinary statute law and an entrenched bill of rights. Cases in which the HRA or the ECHR have been used to protect or extend individual rights include the following:
• Banning prisoners from voting – in the UK and other countries – was declared to be a breach of their human rights and unlawful (2005).
• The decision not to deport the murderer of Philip Lawrence when his sentence is completed to his country of origin, Italy (2007). • In a ruling linked to the HRA, the Supreme Court declared that measures to freeze the assets of terrorist suspects were unlawful (2010).
• The deportation to Jordan of Abu Qatada was blocked because of fears that evidence obtained under torture would be used against him (2012). (A new treaty with Jordan nevertheless led to his deportation the following year.)
• Whole life sentences were deemed to be a breach of Article 3 of the Convention, which prohibits torture (2013).
• TheSupremeCourtruledthatthepolicecannotkeepinformationonpeople on their database forever, as it breaches the citizen’s right to privacy (2015).
The HRA, and the rulings that have been made under it, have led to considerable controversy. Supporters of the HRA argue that it has significantly strengthened the ability of judges to apply the rule of law and uphold individual rights, including the rights of unpopular minorities. This will, over time, force ministers and other public bodies to be more sensitive to civil liberties issues, thereby promoting greater accountability and improving trust in government. This also extends to the wider public, for whom the HRA has had educational benefits. It has made citizens more aware of their rights and encouraged them to be more assertive in protecting them. In this way, the HRA helps to fulfil one of the functions that, in other systems, is performed by a ‘written’ constitution. The HRA may, indeed, be a particularly good example of the benefits of the UK’s flexible and pragmatic constitution. It provides more effective protection for civil liberties but stops short of allowing judges to strike down Acts of Parliament.
Criticisms of the HRA have come from various directions, though. First, it is commonly argued that the Act allows judges to overstep their traditional role. Through their interpretation of the HRA, judges are, effectively, able to ‘rewrite’ legislation. This, arguably, makes judges too strong, in that they are able to act more like judges in the USA, who are able to encroach on the policy-making role of politicians. How appropriate is it for the courts to have ‘quasi-legislative’ powers under which unelected and socially unrepresentative judges can alter the law on policy matters, like access to social security and the right to a tenancy?
Second, the HRA and ECHR arguably suffer from the phenomenon of human rights’ inflation, the tendency for rights other than those intended to stop gross abuses of government power to be designated as ‘human rights’, and therefore to be treated as absolute and fundamental rights.
Third, Conservatives in particular have viewed the HRA as a Trojan Horse that allows a particular ‘European’ conception of rights to take root within the UK. Promising to ‘restore sovereignty to Westminster’, the Conservatives have therefore argued that Parliament should be given the right to veto judgments of the European Court of Human Rights in Strasbourg, and, failing that, that the UK should withdraw from the Convention itself. Linked to this, the HRA would be replaced by a ‘British bill of rights’, although the exact status and precise contents of such a bill of rights remain unclear. However, allegations that the European Convention on Human Rights is somehow ‘un-British’ fail to take account of the fact that the UK was an original signatory of the Convention and one of the first states to ratify it, in 1951, and that UK civil servants and lawyers played an influential role in its drafting