human rights act 1998

Human Rights Act 1998Human Rights Act 1998

The European convention on human The European convention on human rightsrights

The Convention rightsThe Convention rights How does HRA 1998 workHow does HRA 1998 work Taking proceedings under the HRA 1998Taking proceedings under the HRA 1998 Taking a case to the ECHRTaking a case to the ECHR Impact of HRA 1998Impact of HRA 1998

European Convention on Human European Convention on Human RightsRights

The preamble to the Human Rights The preamble to the Human Rights Act 1998 (HRA) describes it as ‘an Act 1998 (HRA) describes it as ‘an Act to give greater effect to rights Act to give greater effect to rights and freedoms guaranteed under the and freedoms guaranteed under the European Convention on European Convention on human human rightsrights

The United Kingdom (UK) signed up The United Kingdom (UK) signed up to the Convention in 195to the Convention in 19511 and was and was one of the first countries to do so. one of the first countries to do so.

European Convention on human European Convention on human rightsrights

In all, 45 countries have now signed In all, 45 countries have now signed up to the Convention including most up to the Convention including most of the east Europeanof the east European..

The countries that have signed The countries that have signed up to the Convention make up up to the Convention make up the Council of Europe.the Council of Europe.

The Council of Europe is quite The Council of Europe is quite separate from the European separate from the European Union. Union.

European Convention on European Convention on Human RightsHuman Rights

The Convention is divided into ‘articles’. The Convention is divided into ‘articles’. Articles 2 to 14 set out the rights that are Articles 2 to 14 set out the rights that are protected by the Convention. protected by the Convention.

Over the years the Convention has been Over the years the Convention has been supplemented by a number of protocols supplemented by a number of protocols that have been agreed by the Council of that have been agreed by the Council of Europe. Europe.

Some of the protocols just deal with Some of the protocols just deal with procedural issues but some guarantee procedural issues but some guarantee rights in addition to those included in the rights in addition to those included in the Convention. Convention.

European Convention on European Convention on Human RightsHuman Rights

The European Court of Human Rights The European Court of Human Rights (ECHR) is the international court set up (ECHR) is the international court set up to interpret and apply the Convention. to interpret and apply the Convention.

It is based in Strasbourg, France and is It is based in Strasbourg, France and is made up of judges nominated by each made up of judges nominated by each of the countries that are members of of the countries that are members of the Council of Europe. the Council of Europe.

Since 1966 people have had the right Since 1966 people have had the right to bring cases against the British to bring cases against the British Government in the ECHR. Government in the ECHR.


Because the Convention is now over Because the Convention is now over 50 years old some of the language 50 years old some of the language that it uses is quite outdated.that it uses is quite outdated.

However, the ECHR has often stressed However, the ECHR has often stressed that the Convention is a ‘living that the Convention is a ‘living instrument’. This means that as instrument’. This means that as society and attitudes change, the society and attitudes change, the ECHR will change and develop the way ECHR will change and develop the way in which it interprets the Convention. in which it interprets the Convention.


The ECHR will, however, still tend to The ECHR will, however, still tend to follow the precedents set by earlier follow the precedents set by earlier cases - where it does not it will make it cases - where it does not it will make it clear why it is not doing so. It is clear why it is not doing so. It is therefore important to look at past therefore important to look at past decisions of the ECHR. decisions of the ECHR.

TThe HRA requires the courts in he HRA requires the courts in UKUK take take the ECHR’s past decisions into account the ECHR’s past decisions into account when deciding cases under the HRA. when deciding cases under the HRA.

The Convention RightsThe Convention Rights

Not all the rights set out in the Not all the rights set out in the Convention and its Protocols are Convention and its Protocols are incorporated into British law by the incorporated into British law by the Human Rights Act 1998. Human Rights Act 1998.

The HRA only incorporates the rights The HRA only incorporates the rights in Articles 2 to 12 and in Article 14 in Articles 2 to 12 and in Article 14 of the Convention, plus those in the of the Convention, plus those in the First and Sixth Protocols. First and Sixth Protocols.

Which rights are incorporatedWhich rights are incorporated

Art. 2 - right to lifeArt. 2 - right to life Art. 3 - protection from inhuman Art. 3 - protection from inhuman

treatmenttreatment Art. 4 - freedom from forced labourArt. 4 - freedom from forced labour Art. 5 - right to libertyArt. 5 - right to liberty Art. 6 - right to fair trialArt. 6 - right to fair trial Art. 8 – respect for privacyArt. 8 – respect for privacy

Which rights are incorporatedWhich rights are incorporated

Articles 9 &10 – freedom of thought Articles 9 &10 – freedom of thought and expressionand expression

Art. 11 – freedom of peaceful Art. 11 – freedom of peaceful assemblyassembly

Art. 1, Protocol 1 – right to peaceful Art. 1, Protocol 1 – right to peaceful enjoyment of possessionsenjoyment of possessions

Art. 2, Protocol 1 – right to educationArt. 2, Protocol 1 – right to education

How does HRA 1998 workHow does HRA 1998 work

The HRA gives ‘greater effect’ to The HRA gives ‘greater effect’ to Convention Rights in two main Convention Rights in two main ways:ways:

It makes it clear that as far as It makes it clear that as far as possible the courts should possible the courts should interpretinterpret the law in a way that is the law in a way that is compatiblecompatible with Convention rights. with Convention rights.


It places an obligation on It places an obligation on publicpublic authoritiesauthorities to act to act compatiblycompatibly with Convention rights.with Convention rights.

It gives It gives people the right to take people the right to take court proceedings if they think court proceedings if they think that their Convention rights have that their Convention rights have been breached or are going to be. been breached or are going to be.


Interpreting the Law CompatiblyInterpreting the Law Compatibly Parliament makes laws but courts Parliament makes laws but courts

interpret theminterpret them when interpreting legislation the courts when interpreting legislation the courts

must do so in a way which does not must do so in a way which does not lead to people’s Convention rights lead to people’s Convention rights being breached. being breached.

the courts are now under a duty to the courts are now under a duty to develop the common law in a way that develop the common law in a way that is compatible with Convention rights. is compatible with Convention rights.

What Happens if the Courts cannot What Happens if the Courts cannot Read the Law CompatiblyRead the Law Compatibly

If the law is an Act of Parliament, the If the law is an Act of Parliament, the courts have no choice but to apply the courts have no choice but to apply the law as it is, even though it breaches law as it is, even though it breaches Convention rights. Convention rights.

However, the higher courts (the High However, the higher courts (the High Court, the Court of Appeal and the House Court, the Court of Appeal and the House of Lords) have the power to make a of Lords) have the power to make a ‘‘declaration of incompatibility’. declaration of incompatibility’.


a ‘a ‘declaration of incompatibility’ declaration of incompatibility’

iis a statement that the courts s a statement that the courts consider that a particular law consider that a particular law breaches Convention rights. It is breaches Convention rights. It is meant to encourage Parliament to meant to encourage Parliament to amend the law, but the courts cannot amend the law, but the courts cannot force the Government or Parliament force the Government or Parliament to amend the law if they do not want to amend the law if they do not want to. to.


Secondary legislation is law made Secondary legislation is law made under the authority of an Act of under the authority of an Act of Parliament. Parliament.

Where the courts find that an item of Where the courts find that an item of secondary legislation is incompatible secondary legislation is incompatible with Convention rights, they have the with Convention rights, they have the power to strike the law down or not to power to strike the law down or not to apply it. apply it. ApplApplies to all courts, not just ies to all courts, not just the higher ones. the higher ones.

Public AuthoritiesPublic Authorities

The HRA requires public authorities to act The HRA requires public authorities to act in a way that does not breach Convention in a way that does not breach Convention rights. rights.

The HRA does not define the term public The HRA does not define the term public authority, but it is clear that bodies like authority, but it is clear that bodies like the police, local councils and government the police, local councils and government departments and agencies are all public departments and agencies are all public authorities.authorities.

Public AuthoritiesPublic Authorities

Private individuals and bodies will not Private individuals and bodies will not be public authorities for the purposes be public authorities for the purposes of the HRA unless they are performing of the HRA unless they are performing a a public function. public function.

a private security company that has a contract with a private security company that has a contract with the Government to transport prisoners to and from the Government to transport prisoners to and from court will be a public authority for the purposes of court will be a public authority for the purposes of the HRA (and therefore under a duty to respect the HRA (and therefore under a duty to respect Convention rights) when it is transporting prisoners Convention rights) when it is transporting prisoners but will not be when it is guarding private property but will not be when it is guarding private property under a contract with a private organisation. under a contract with a private organisation.

Taking proceedings under the Taking proceedings under the Human Rights Act 1998Human Rights Act 1998

proceedings against a proceedings against a public public authorityauthority -- a declarationa declaration that the that the public authority has breached public authority has breached Convention rights or is proposing to do Convention rights or is proposing to do so. so.

If the breach is continuing If the breach is continuing -- an orderan order that the public authority should that the public authority should stopstop acting in a way that breaches their acting in a way that breaches their Convention rights. Convention rights.


CCompensationompensation AApplication for judicial review. Court pplication for judicial review. Court

rules require an application for judicial rules require an application for judicial review to be brought ‘promptly’ and in review to be brought ‘promptly’ and in any event within three months of the any event within three months of the decision or action being challenged. decision or action being challenged. Where someone does not make an Where someone does not make an application for judicial review there is a application for judicial review there is a one year time limit for starting one year time limit for starting proceedings. proceedings.


Proceedings Against Private Proceedings Against Private Individuals or BodiesIndividuals or Bodies

As private bodies and individuals As private bodies and individuals are not required by the HRA to are not required by the HRA to respect Convention rights, it is respect Convention rights, it is not possible to take proceedings not possible to take proceedings under the HRA against them. under the HRA against them.

Taking a case to the Taking a case to the European Court of Human European Court of Human RightsRights OneOne must be a victim of a violation must be a victim of a violation

of one or more of the articles of of one or more of the articles of the Convention. the Convention.

Before an application to the ECHR Before an application to the ECHR oneone must pursue any proceedings must pursue any proceedings iin the UKn the UK..

AApplication to the ECHR within six pplication to the ECHR within six months of the conclusion of any months of the conclusion of any court proceedings taken in the UK court proceedings taken in the UK

Impact of Human Rights ActImpact of Human Rights Act

A form of higher law in UKA form of higher law in UK

New rule of statutory New rule of statutory interpretation-new way of interpretation-new way of thinkingthinking

SovereigntySovereignty

Impact of Human Rights Act Impact of Human Rights Act

The purposive approachThe purposive approach Compatibility with the Convention Compatibility with the Convention

RightsRights Courts to look at the purpose of Courts to look at the purpose of

the Conventionthe Convention In case of incompatibility – courts In case of incompatibility – courts

are likely to make a ruling on the are likely to make a ruling on the basis of the best interpretationbasis of the best interpretation


When determining the meaning of When determining the meaning of legislation courts may, where legislation courts may, where necessary be able to:necessary be able to:

‘ ‘read in’ extra wordsread in’ extra words or even ignore wordsor even ignore words To make legislation compatibleTo make legislation compatible


SovereigntySovereignty Provisions of the Convention Provisions of the Convention

apply to all courtsapply to all courts Supremacy of Parliament is Supremacy of Parliament is

limited by the HRA 1997limited by the HRA 1997

human rights act 1998

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