University of Minnesota
Human Rights Law Library
The Human Rights Act
1998
The Human Rights Act came into force on 2nd
October 2000
except that it may be used as a defence to
proceedings brought by a public authority in respect of an act
which occurred before that date - s.22(4).
"So
far as it is possible to do so" legislation must be read and
given effect in a way which is compatible with Convention rights
- s.3(1).
Courts must take into account decisions of the European Court of
Human Rights ("ECtHR"), the European Commission (abolished Nov
1998) and the Committee of Ministers of the Council of Europe -
s.2. There is no doctrine of precedent, i.e. these decisions are
not binding.
It is unlawful for a public authority to act in a way which is
incompatible with a Convention right - s.6(1). A public
authority means bodies whose functions are of a public nature
which means the following are covered:-
- everything done by a public
authority;
- courts and tribunals; and
-
public acts by anyone certain
of whose functions are of a public nature even if they are
nominally private bodies (see Donoghue -v- Poplar HRCA
[2001] EWCA Civ 595; 3 WLR 183; 4 AllER 604).
This excludes cases where both parties are private, e.g. private
sector landlord and tenant disputes. However, the courts must
comply with the ECHR, including by interpreting statutes in
accordance with s.3(1) and in considering the common law.
Anyone, if they are a "victim" (as defined in the decisions of
the ECtHR), may:-
-
bring proceedings against a
public authority on ECHR grounds alone (s.7(1)(a)) within one
year of the act complained of or such longer period as the
court/tribunal considers equitable having regard to all the
circumstances - s.7(5);
- rely on any Convention
rights in any legal proceedings - s.7(1)(b).
The courts have the same remedies for ECHR cases as they would
for any other cases - s.8. However, damages or compensation are
limited by the principles laid down by ECtHR - s.8(4).
Compensation awarded by the ECtHR is rarely as much as would be
likely to be awarded as damages if the principles of English law
on damages were applied.
The European Convention
on Human Rights
The ECHR has three sections:-
I. Rights and freedoms (see
below)
II. Establishes ECtHR and provides for its operation
III. Miscellaneous, including territorial application,
reservations, signature and ratification.
Art.1 (obligation of State parties to secure ECHR rights) and
Art.13 (right to an effective remedy for breach of ECHR) were
not incorporated by HRA. However, Lord Irvine, the Lord
Chancellor, stated in Parliament that this was because HRA
fulfilled them and that courts would still have to take into
account ECtHR decisions on Art.13.
The rights incorporated are:-
- Art.2 Right to life
- Art.3 Prohibition of
torture and inhuman or degrading treatment
- Art.4 Prohibition of
slavery and forced labour
- Art.5 Right to liberty and
security
- Art.6 Right to a fair trial
- Art.7 No punishment without
law - no retrospective penalties
- Art.8 Right to respect for
private and family life, home and correspondence
- Art.9 Freedom of thought,
conscience and religion
- Art.10 Freedom of
expression
- Art.11 Freedom of assembly
and association
- Art.12 Right to marry
- Art.14 Prohibition of
discrimination in the enjoyment of the above rights
- Protocol No.1
- Art.1 Protection of
property
- Art.2 Right to education
- Art.3 Right to free
elections
- Protocol No.6
- Art.1 Abolition of the
death penalty
The rights must be interpreted
in accordance with the following principles:-
-
Art.31 of the Vienna
Convention on the Law of Treaties states that a "treaty
shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in
their context and in light of its objects and purpose."
-
The objects and purpose of the
ECHR, including:
- the maintenance and further realisation of human rights;
- the maintenance and promotion of the ideas and values of a
democratic society, such as pluralism, tolerance and
broad-mindedness;
- the rule of law.
- Rights must be practical
and effective, not theoretical and illusory.
- The ECHR is a "living
instrument".
- Legal terms are autonomous,
i.e. they don't necessarily mean the same thing as in domestic
law.
-
They must not conflict with
other human rights instruments, such as the
International Covenant on Civil and Political Rights.
The above rights are put into
one of three categories:-
- Absolute rights - 2,
3, 4(1) and 7
- Derogable rights -
4(2), 4(3), 5 and 6
- Qualified rights -
8, 9, 10 and 11
Qualified rights may be subject to a limitation or restriction
but only if:-
- that limitation or
restriction is "prescribed by law";
- it pursues one of the aims
specifically listed in Arts.8(2), 9(2), 10(2) or 11(2);
- it is "necessary in a
democratic society"; and
- it is not discriminatory
under Art.14.
The ECHR is mostly about limiting state power, i.e. setting out
negative duties as to what the state cannot do, but it also
imposes positive duties on state authorities to:-
- put in place a legal
framework which provides effective protection for Convention
rights;
- prevent breaches of the
ECHR;
- provide information and
advice relevant to breaches of the ECHR;
- respond to breaches;
- provide resources to
individuals to prevent breaches.
