Background

What are rights?

It is good to establish a few boundaries to begin with. A 'right' is something most people instinctively have an understanding of. When considering rights in a legal sense, however, it is useful to have a definition. In these notes the term 'right' will used in the following context:

'In most cases when we say that someone has a 'right' to do something, we imply that it would be wrong to interfere with his doing it, or at least that some special grounds are needed for justifying any interference.' (Dworkin, 'Taking Rights Seriously', 1977.)

If this definition is correct, then governments will have to be very careful not to restrict individual freedom. For example, where someone has a legal foundation for a positive right, it would not be acceptable to deny that right on the basis that individual freedoms need to be weighed against the welfare of the majority. Even though law making in a democratic society necessarily implies balancing the interests of the individual with those of society as a whole, adopting a rights-based approach empowers the citizen to bring claims against publicly funded bodies. Whether the claimant is successful or not will ultimately depend upon the individual facts of the case. Moreover, individual rights may have to be restricted in the interests of national security.

The traditional position in English law regarding individual freedom is that each subject is free to do what is not forbidden by law. For example, this means that the individual is free to express themselves, to associate with whoever they wish, to assemble with like minded people, and to protest, up to the point at which the law is broken. Here the law acts as a form of back-stop. These rights operate on a presumption of liberty, and are often called 'negative rights'. The individual may presume to have certain freedoms up to the point at which the law kicks in.

The Human Rights Act 1998 will provide UK citizens with 'positive rights'. These rights will be founded in an Act of Parliament passed by a democratically elected sovereign body, which has the power to make, amend and repeal the law. These rights cannot easily be taken away indeed, it highly unlikely that Parliament would remove any human rights legislation from the statute book. All citizens will be able to read what their human rights are. The law will be known, certain and applied by the courts.

Contrast 'positive rights' with the situation where the freedom of the individual is inhibited by the power of the law to restrict. The HRA provides citizens with greater opportunities to participate in civil society. It is important to understand, however, that a crucial balance still exists; rights and responsibilities are two sides of the same coin. A person in pursuit of what they consider to be their fundamental right may infringe the rights of others.

The Human Rights Act 1998

Background

The HRA incorporates the European Convention on Human Rights (ECHR) into British law. This will enable British courts and judges to rule on human rights, and aggrieved individuals will no longer have to go to the European Court of Human Rights in Strasbourg. (Note that this is not the same as the European Court of Justice which sits in Luxembourg and administers European Union law.) This should ensure that matters will be dealt with more quickly and will involve less time, delay and expense.

The ECHR originated due to necessity to protect human rights against violations such as those experienced by the inhabitants of Nazi occupied Europe. The European Convention for the Protection of Human Rights and Fundamental Freedoms, to give its full title, is a treaty of the Council of Europe adopted on 4 November 1950, and effective since 3 September 1953. Although the UK ratified this treaty in 1951, the ECHR was never incorporated into British law; it was believed that the British subject was adequately protected by common law principles formulated by the courts over hundreds of years. As the ECHR was not incorporated into British law by an Act of Parliament, British courts had no obligation to uphold rights set out by it. Lord Jowitt, the Lord Chancellor of the time, called the Convention, 'some half baked scheme to be administered by some unknown court'.

It was not until 1965 that the Labour Government allowed individuals to take cases to the European Court of Human Rights. In the period up to the end of 1996 the UK had been before the Strasbourg Court no less than 71 times and was found to be in breach of the ECHR on 44 occasions. Recent examples of successful actions against the UK include those involving the two boys found guilty of the murder of Jamie Bulger, on the grounds that both the mode of trial and sentence were inappropriate; and a child who was subjected to repeated caning by his stepfather, found by the Court to have had his human rights breached.

The ECHR provides fundamental human rights including, the right to life, freedom from torture and degrading treatment, freedom from arbitrary arrest, the right to a fair trial, the right to privacy, freedom of religion, freedom of expression, and freedom of assembly and association. These rights are drafted in very broad terms compared to the way that British statutes are framed. For example, Article 2 states that, 'Everyone's right to life shall be protected by the law'. As we examine the HRA in more detail, bear in mind possible ways UK courts may interpret such wide terms.

The Act

The new Labour Government in May 1997 promised to incorporate the ECHR into domestic law and issued a White Paper, 'Rights Brought Home' within months of taking office. The Human Rights Act (HRA) was enacted in 1998 but will only be implemented from 2 October 2000. The intervening time has been necessary to provide training for the judiciary, and for the legal profession to become acquainted with the opportunities the legislation offers.

Importantly, the HRA will require public authorities to act in compliance with the ECHR, unless they are prevented from doing so by an existing statute (Act of Parliament). Failure to do so will be unlawful. Where a statute is clear but incompatible with the ECHR the courts must follow the statute. Where the higher courts believe that an Act of Parliament contravenes the ECHR they can, however, issue a 'Declaration of Incompatibility'. This provides an opportunity for the Government to amend existing law, or to justify why it should not be amended.

Under the HRA a claim may be brought against a public authority where an individual believes their rights under the ECHR have been infringed. This may include Government departments, local authorities, police, immigration, prisons, NHS and trust hospitals, courts and tribunals, and any other body that exercises a public function. The courts will be able issue injunctions (an order restraining a person from doing something or compelling them to do something) and award damages (compensation) against the defendant public authority (rather than individuals). Individuals will also be able to use the ECHR in the domestic courts to defend themselves in criminal matters.

Which rights have been incorporated?

The HRA does not incorporate all the rights outlined in the ECHR. Of those which have been incorporated the following are the most significant:

Article 2 - The right to life
Article 3 - Freedom from torture or inhuman or degrading treatment
Article 4 - Freedom from slavery and forced labour
Article 5 - Freedom from arbitrary arrest and detention
Article 6 - The right to a fair trial
Article 7 - Freedom from retroactive penalties
Article 8 - The right to privacy and family life
Article 9 - Freedom of thought, conscience and religion
Article 10 - Freedom of expression
Article 11 - Freedom of assembly and association
Article 12 - The right to marry and found a family
Article 14 - Freedom from discrimination

Plus some later additions to the ECHR:

Protocol 1 - The peaceful enjoyment of property and possessions
Protocol 2 - The right to an education
Protocol 3 - The right to free elections