The Human Rights Act 1998

In the UK, human rights have traditionally been protected by statute and by the courts, however in the contemporary UK, protection of human rights underwent a paradigm shift with the enactment of the Human Rights Act 1998 by the then labour government, who conceived this legislation as a means of incorporating the fundamental rights and freedoms of the European Convention of Human Rights into national law.

Analysis of the structure of the HRA reveals the Parliamentary intent of the Act, and which elements of the Convention have been incorporated into UK law.

The long title of the Act states that its purpose is principally to give national legal effect to rights and freedoms guaranteed under the ECHR by incorporating Article 2 to 12 and 14 of the Convention, Articles 1 to 3 of the First Protocol and Article 1 of the thirteenth Protocol.

The former Lord Chancellor, Lord Irvine of Lairg is recognised as the architect of this legislation, and in a Lecture of 2011 hosted by UCL’s Judicial Institute defended the HRA specifically Section 2 of the Act, against both press and political hostility. Central to this argument is that Section 2 effectively cedes jurisdiction for UK human rights cases to Strasbourg.

Section 2 compels any court in determining a legal issue arising from a Convention right to ‘take into account’ the jurisprudence of the European Court of Human Rights, the Commission and the Committee of Ministers. Each source of legal judgment while non-binding is considered highly persuasive.

In R v Horncastle [2009] UKSC 14 the Supreme Court in considering the effect of Section 2, decided that while typically a UK court would follow legal principles established by the ECtHR, in certain specific circumstances, the UK court could depart from an ECtHR ruling where an aspect of domestic legal procedure was considered out-with the appreciation of the ECtHR.

Section 3 of the HRA requires case law and both primary and subordinate legislation to be interpreted by UK courts as far as possible in a manner compatible with Convention rights, whether the legislation was enacted before or after implementation of the HRA.

A key example of the appropriate use of Section 3 arose when the House of Lords ruled in Ghaidan v Godin-Mendoza [2004] UKHL 30 that the legislation in question must be interpreted in the light of Article 8 of the ECHR to include same-sex relations within the statutes definition of ‘wife or husband’.

Section 4 of the HRA prescribes the protocol when courts are faced with domestic legislation which cannot be interpreted in the light of Convention rights. It enables a court to make a ‘declaration of incompatibility’ where a statutory provision of domestic legislation cannot be interpreted in light of a Convention right, while Section 10 enables the Executive to amend legislation declared incompatible under a fast-track process.

In Doherty v Birmingham City Council [2008] UKHL 57, the House of Lords reiterated that primary legislation, despite the fact that it could not be effected compatibly with the Convention was still legally valid until amended by the legislature.

In the course of protecting individual human rights, the judiciary often have to balance conflicting human rights interests as demonstrated by the House of Lords ruling in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22. More prescient, since the 9/11 attacks on New York, and the subsequent atrocities carried out by UK Nationals on passengers on London’s Public Transport system in July 2005, courts now have to balance individuals’ rights, to liberty and security under Article 5, with the requirement for the security service to obtain information likely to prevent a terrorist attack.

In A v Secretary of State for the Home Department [2004] UKHL 56, the UK Government attempted to derogate from Article 5(1) of the ECHR to enable the detention of suspected terrorist suspects. The foundation of the derogation under Article 15 was the responsibility of the Government to protect the public in time of emergency.

The establishment of a commission to consider a UK Bill of Rights found that, in general, there existed a lack of public support for the legal structures provided by the HRA and the ECHR. The commission felt that establishment of a UK Bill of Rights would create an easily identifiable legal mechanism for the protection of individuals’ rights that more effectively reflected: ‘the distinctive history and heritage of the countries within the United Kingdom’.

Two of the nine commissioners opposed the conclusion, as they feared that the ‘public ownership’ argument could be used to ‘decouple’ the UK from the ECHR.

In a process that has become politically partisan several high profile Conservative politicians have proposed fundamental changes to UK human rights law and the withdrawal of the UK from the ECHR. This viewpoint is fuelled inter alia, by an underlying resentment of the influence of EU legal supremacy in the UK national context, essentially a virulent ‘euro-scepticism’ as opposed to an intellectual opposition to the mechanisms of the ECHR and HRA.

It could be argued that the withdrawal of the UK from the ECHR represents a betrayal of the UK’s pivotal role in the design and creation of the Convention, the UK being amongst the first Member States to ratify the Treaty.

However the establishment of a UK Bill of Rights need not necessitate withdrawal from the ECHR and this distracts somewhat from a balanced comparison of potential advantages and disadvantages of a UK Bill. Foremost amongst these are the undeniable benefits an entrenched bill would secure in more clearly defining and increasing public awareness of individual rights and freedoms for UK nationals, particularly for minorities who have limited political influence.

However, this should not distract from the undeniable fact that protection of human rights is fully accepted in the UK, and the rights entrenched in unwritten constitutional conventions, common law and legislation are flexible and therefore capable of responding to change.

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A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68,  [2005] 3 All ER 169

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 All ER 995

Doherty v Birmingham City Council [2008] UKHL 57, [2009] 1 AC 367, [2009] 1 All ER 653

Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, [2004] 3 All ER 411

R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, [2010] 2 All ER 359

Secretary of State for the Home Department v JJ [2007] UKHL 45[2008] 1 AC 385, [2008] 1 All ER 613

Secretary of State for the Home Department v MB [2007] UKHL 46[2008] 1 AC 440, [2008] 1 All ER 657