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The Human Rights Act (HRA), which came into effect in 2000, incorporated the European Convention on Human Rights (ECHR) into UK law. (Remember that the ECHR is not part of the EU.) The aim was to strengthen and broaden the protection of rights in the UK. The 1980's were seen as a period when rights had been threatened (The Miners' strike, Spy Catcher, ban on reporting Sinn Féin) and the UK's poor record in front of the European Court of Human Rights.
One effect was to substantially widen the ability of the judiciary to protect civil liberties and check the exercise of executive power and, in certain respects, legislative power.
However, the courts were required in Section 3 of the Act to interpret all legislation (statutes and delegated legislation) in such a way as to be compatible with the Convention. However in section 4 of the act, if a court believes that legislation can not be reconciled with the Convention it issues a declaration of incompatibility which requires the government through Parliament to make a new law or set aside the existing incompatible provisions ( derogation).
Declarations of incompatibility are rare. Between 2010 and 2015 there were only three such declarations. There have been 46 declarations of incompatibility by July 2022, with 10 having been overturned on appeal In each case, however, the government asked Parliament to amend the existing law to remove the conflict with the ECHR. Despite this small number, the principle is an important one. What is means is that those who draft legislation and those who scrutinise it in Parliament must take account of the ECHR. The mere threat of a declaration by judges is enough to influence law making. It was designed to be is also a protection of human rights in the UK.
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. So one of the main results of the HRA has been to bring 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 trade union) • Right to marry • Freedom from discrimination(sex,race,colour,language,religion,and soon) • Right to education • Right to free elections with a secret ballot.
Cases which have resulted
Ghaidan v Godin-Mendoza The rights of 'spouses' to succeed to a tenancy in the event of a tenant's death was extended to homosexual couples (2004). This case was resolved bt the Lords interpreting the existing Rent Act to be comparable with the HRA.
The Belmarsh 9. Nine terrorist suspects held without trial in Belmarsh Prison were released on the grounds that the law on which their detention was based discriminated illegally between foreign nationals and UK subjects (2004). Parliament decided to replace Part 4 of the Anti-terrorism, Crime and Security Act 2001 with the Prevention of Terrorism Act 2005. This allows anyone of any nationality to be subjected to a control order. This illustrates the Sovereignty of Parliament over the HRA.
The decision not to deport the murderer of Philip Lawrence when his sentence is completed to his country of origin, Italy (2007).
The Court of Appeal blocked the deportation to Jordan of Abu Qatada, believed to be a security threat. (2008).BBC Report Abu Qatada On 12 November 2012, the UK Special Immigration Appeals Commission (SIAC) upheld Abu Qatada's appeal against deportation and released him on restrictive bail conditions. The Home Secretary Theresa May said the government would appeal against the decision. He was deported to Jordan on 7 July 2013, after the UK and Jordanian governments agreed and ratified a treaty satisfying the need for clarification that evidence potentially gained through torture would not be used against him in his forthcoming trial.
In a ruling linked to the HRA, the Supreme Court declared that measures to freeze the assets of terrorist suspects were unlawful (2010).
Banning prisoners from voting – in the UK and other countries – was declared to be a breach of their human rights and unlawful (2005). In 2005 the European Court of Human Rights (ECtHR) ruled that the UK was in breach of Article 3 of Protocol No 1 of the European Convention on Human Rights in relation to prisoner voting rights. The issue remained unresolved until 2018. The government finally proposed administrative changes which allowed prisoners released on temporary licence to vote. In December 2017 the Council of Europe welcomed the proposals, agreeing to them as an acceptable compromise
R (Steinfeld and Keiden) v Secretary of State for the International Development Sections 1 and 3 of Civil Partnership Act 2004 (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the convention.
• Whole life sentences were deemed to be a breach of Article 3 of the ECHR
The Supreme Court ruled that the police can not keep information on people on their database forever, as it breaches the citizen’s right to privacy (2015).
It is argued by supporters of the HRA argue that it was a necessary reform to rebalance the UK constitution in the face of potential for elective dictatorship and that in a diverse society it was necessary to protect the rights of minorities. That it has significantly strengthened the ability of judges to apply the rule of law and uphold individual rights, as governments met the challenge of terrorism. It is argued that 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 which in turn might address the participation crisis. 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 be seen as a good example of the advantages 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.
Critics of the HRA have argued that the Act allows judges to overstep their traditional role. Through their interpretation of the HRA, judges are, effectively, able to ‘rewrite’ legislation which has been described as judicial tyranny. This, arguably, makes judges too strong, in that they are able to act more like judges in the USA, who are able to become political and encroach on the policy-making role of politicians. How appropriate is it for the courts to have ‘quasi-legislative’ powers under which un-elected and socially unrepresentative judges can alter the law on policy matters, like access to social security and the right to a tenancy?
However, critics form the left have argued that the HRA is too limited and have suggested it should be replaced by a more comprehensive Bill of Rights.The Scottish Government's proposed Human Rights Bill will bring four United Nations international human rights treaties into the law in Scotland, within the limits of the Scottish Parliament's devolved powers. The Bill will also recognise and include the right to a healthy environment. They argue some internationally-recognised human rights – like the right to health or to an adequate standard of living – are not yet set out in Scots law. This means people don't have the same routes to access justice if those rights are not upheld.
It means public bodies and private organisations delivering public services in Scotland do not always have to show how their decisions helped to make those rights real for the people they work with or serve.
Also the HRA and ECHR arguably suffer from the phenomenon of human rights’ inflation, which is the tendency for rights other than those intended to stop gross abuses of government power to be designated as absolute ‘human rights’, and therefore to be treated as absolute and fundamental rights. For example rights of privacy or family life.
Conservative critics have viewed the HRA as a particularly ‘European’ conception of rights which it at odds with our common law traditions and negative rights culture. This has also been taken up by those who wish 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. In 2017 a British Bill of Rights formed part of the Conservative manifesto. The Human Rights Reform Bill received its first reading in 2022 but has not progressed.The influential Joint Committee on Human Rights said a planned Bill of Rights Act would restrict certain protections "the government finds inconvenient". Liz Truss's government shelved plans for Human Right Bill with was design designed to give ministers the power to ignore human rights rulings from the European Court of Human Rights (ECHR).
Act for the Act now longer campaign since the pressure to repeal or replace the HRA declined with the dominance of Brexit, however the issue still remains live in the Conservative Party.
Case Study Act for the Act- campaign to protect the HRA
However in 2023 Home Secretary Suella Braverman, in a speech to a right wing American think tank,the American Enterprise Institute, made the case for leaving the European Convention on Human Rights
2 Oct 2023
Former Supreme Court justice Jonathan Sumption and former Attorney General Dominic Grieve debate whether Britain should leave the ECHR. Sumption says that the convention is ‘intrusive and banal’. Grieve says that despite the convention’s faults, it’d do more harm than good to leave it.
Its operation
The Human Rights Act was passed in 1998 and came into force in 2000. Its effect was to bring the terms of the European Convention on Human Rights (ECHR) into British law. The following arrangements were made under the Act.
· All government bodies, state organisations, devolved assemblies and governments, local authorities and any body engaged in 'public business' such as schools, hospitals or the media, must abide by the terms of the convention. All private bodies which provide public services also must abide.
· The only body that is not bound by the ECHR is the UK Parliament in Westminster This means that parliamentary sovereignty is preserved.
· If legislation proposed in Westminster is likely to contradict the convention, the relevant government minister must make a 'declaration of incompatibility', stating how and why the proposal does not conform to the convention.
· Any legal claim that the convention has been breached can be made in a British court at any level. If the judge believes the convention has been breached, he or s can order that a decision or action must be changed or canceled.
· Appeals based on the convention can be passed up to higher courts, ultimately the Supreme Court.
· Judges in the courts can interpret the meaning of the ECHR and how it should app in a particular case.
· The one limitation on the power of the judges is that they cannot overturn any Law made in the UK Parliament. The judge may declare that the convention has to be breached by such an Act or Order, but cannot overturn it.
· In some cases of great significance, a final appeal may be made to the Europe. Court of Human Rights in Strasbourg.
· Judgements of the European Court of Human Rights are binding in most countries but not in the UK. Nevertheless, the UK government will virtually always abide its decisions.
The HRA has shifted the boundary between legal and political decision making.
• This has affected such areas as immigration, sentencing policy, security and policing, privacy and freedom of expression.
• The Human Rights Act has given greater scope for the use of judicial review The HRA has affected the issues shown, e.g.
• It is argued by its critics that the HRA has eroded parliamentary sovereignty since although it is not entrenched Parliament hesitates to derogate parts of the Bill or pass special legislation - because this would undermine the whole purpose of having protection of Human Rights.
• The HRA has affected how judges apply sentences. (e.g the block on reporting the murderer of Philip Lawrence)
• Rights judgments have affected government dealings with terrorism and law and order issues, e.g. Belmarsh, Abu Qatada.
• Judgments have attempted to define the limits of privacy (Max Mosley & Michael Douglas cases) and press freedom when these matters might be in the jurisdiction of parliament. 2021The Duchess of Sussex, Megan Markle, won her legal fight against the publisher of the Mail on Sunday over a letter she sent to her father. The Court of Appeal rejected Associated Newspapers' attempt to have a trial in the privacy and copyright case. The court of Appeal ruled right to freedom of expression enjoyed by Mr Markle and Associated Newspapers did not outweigh the Duchess’ right to privacy or copyright because The Mail on Sunday articles were too intrusive and the reproduction of extensive extracts from the Duchess’ letter could not be justified. Meghan said it was a win "not just for me, but for anyone who has ever felt scared to stand up for what's right".
Judgements have attempted to find a balance in freedom of expression cases. e.g DPP v Ziegler which ruled that a protest which did not cause, or set out to cause, serious disruption, was legal. However in the case of two Just Stop Oil protesters jailed after scaling a bridge on the Dartford Crossing have lost a Court of Appeal bid to have their sentences reduced. Morgan Trowland, 40, and Marcus Decker, 34, were jailed after using ropes and other climbing gear to scale the Queen Elizabeth II Bridge, causing gridlock when police closed it to traffic last October. At a hearing in London JUly 2023, the protesters’ lawyers made a bid to challenge the “extraordinary length” of Trowland’s three-year sentence and Decker’s jail term of two years and seven months. In the court's ruling their appeals were rejected by three senior judges, who said the sentences were “not excessive”. This illustrate how the courts interpret the HRA to find a balance between rights of expression and rights to be able to access roads.
Gina Miller and the Article 50 Case. Miller contended that, if notification under Article 50 were to be invoked to leave the European Union, it would effectively nullify a series of Acts of Parliament. It was a constitutional principle that Acts of Parliament could not be changed without the consent of Parliament.
Judgements have attempted to find a balance in freedom of expression cases. e.g DPP v Ziegler which ruled that a protest which did not cause, or set out to cause, serious disruption, was legal.
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