Human Rights Act 1998

1. Human Rights Act 1998 The European convention on human rights The Convention rights How does HRA 1998 work Taking proceedings under the HRA 1998 Taking a case to the ECHR Impact of HRA 1998

2. European Convention on Human Rights • The preamble to the Human Rights Act 1998 (HRA) describes it as ‘an Act to give greater effect to rights and freedoms guaranteed under the European Convention on human rights • The United Kingdom (UK) signed up to the Convention in 1951 and was one of the first countries to do so.

3. European Convention on human rights • In all, 45 countries have now signed up to the Convention including most of the east European. • The countries that have signed up to the Convention make up the Council of Europe. • The Council of Europe is quite separate from the European Union.

4. European Convention on Human Rights • The Convention is divided into ‘articles’. Articles 2 to 14 set out the rights that are protected by the Convention. • Over the years the Convention has been supplemented by a number of protocols that have been agreed by the Council of Europe. • Some of the protocols just deal with procedural issues but some guarantee rights in addition to those included in the Convention.

5. European Convention on Human Rights • The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the Convention. • It is based in Strasbourg, France and is made up of judges nominated by each of the countries that are members of the Council of Europe. • Since 1966 people have had the right to bring cases against the British Government in the ECHR.

6. European Convention on human rights • Because the Convention is now over 50 years old some of the language that it uses is quite outdated. • However, the ECHR has often stressed that the Convention is a ‘living instrument’. This means that as society and attitudes change, the ECHR will change and develop the way in which it interprets the Convention.

7. European Convention on human rights • The ECHR will, however, still tend to follow the precedents set by earlier cases - where it does not it will make it clear why it is not doing so. It is therefore important to look at past decisions of the ECHR. • The HRA requires the courts in UK take the ECHR’s past decisions into account when deciding cases under the HRA.

8. The Convention Rights • Not all the rights set out in the Convention and its Protocols are incorporated into British law by the Human Rights Act 1998. • The HRA only incorporates the rights in Articles 2 to 12 and in Article 14 of the Convention, plus those in the First and Sixth Protocols.

9. Which rights are incorporated • Art. 2 - right to life • Art. 3 - protection from inhuman treatment • Art. 4 - freedom from forced labour • Art. 5 - right to liberty • Art. 6 - right to fair trial • Art. 8 – respect for privacy

10. Which rights are incorporated • Articles 9 &10 – freedom of thought and expression • Art. 11 – freedom of peaceful assembly • Art. 1, Protocol 1 – right to peaceful enjoyment of possessions • Art. 2, Protocol 1 – right to education

11. How does HRA 1998 work The HRA gives ‘greater effect’ to Convention Rights in two main ways: • It makes it clear that as far as possible the courts should interpret the law in a way that is compatible with Convention rights.

12. How does HRA 1998 work • It places an obligation on publicauthorities to act compatibly with Convention rights. • It gives people the right to take court proceedings if they think that their Convention rights have been breached or are going to be.

13. How does HRA 1998 work Interpreting the Law Compatibly Parliament makes laws but courts interpret them when interpreting legislation the courts must do so in a way which does not lead to people’s Convention rights being breached. the courts are now under a duty to develop the common law in a way that is compatible with Convention rights.

14. What Happens if the Courts cannot Read the Law Compatibly • If the law is an Act of Parliament, the courts have no choice but to apply the law as it is, even though it breaches Convention rights. • However, the higher courts (the High Court, the Court of Appeal and the House of Lords) have the power to make a ‘declaration of incompatibility’.

15. What Happens if the Courts cannot Read the Law Compatibly • a ‘declaration of incompatibility’ is a statement that the courts consider that a particular law breaches Convention rights. It is meant to encourage Parliament to amend the law, but the courts cannot force the Government or Parliament to amend the law if they do not want to.

16. What Happens if the Courts cannot Read the Law Compatibly • Secondary legislation is law made under the authority of an Act of Parliament. • Where the courts find that an item of secondary legislation is incompatible with Convention rights, they have the power to strike the law down or not to apply it. Applies to all courts, not just the higher ones.

17. Public Authorities • The HRA requires public authorities to act in a way that does not breach Convention rights. • The HRA does not define the term public authority, but it is clear that bodies like the police, local councils and government departments and agencies are all public authorities.

18. Public Authorities • Private individuals and bodies will not be public authorities for the purposes of the HRA unless they are performing a public function. • a private security company that has a contract with the Government to transport prisoners to and from court will be a public authority for the purposes of the HRA (and therefore under a duty to respect Convention rights) when it is transporting prisoners but will not be when it is guarding private property under a contract with a private organisation.

19. Taking proceedings under the Human Rights Act 1998 • proceedings against a public authority-a declaration that the public authority has breached Convention rights or is proposing to do so. • If the breach is continuing -an order that the public authority should stop acting in a way that breaches their Convention rights.

20. Taking proceedings under the Human Rights Act 1998 • Compensation • Application for judicial review. Court rules require an application for judicial review to be brought ‘promptly’ and in any event within three months of the decision or action being challenged. Where someone does not make an application for judicial review there is a one year time limit for starting proceedings.

21. Taking proceedings under the Human Rights Act 1998 • Proceedings Against Private Individuals or Bodies • As private bodies and individuals are not required by the HRA to respect Convention rights, it is not possible to take proceedings under the HRA against them.

22. Taking a case to the European Court of Human Rights • One must be a victim of a violation of one or more of the articles of the Convention. • Before an application to the ECHR one must pursue any proceedings in the UK. • Application to the ECHR within six months of the conclusion of any court proceedings taken in the UK

23. Impact of Human Rights Act • A form of higher law in UK • New rule of statutory interpretation-new way of thinking • Sovereignty

24. Impact of Human Rights Act The purposive approach • Compatibility with the Convention Rights • Courts to look at the purpose of the Convention • In case of incompatibility – courts are likely to make a ruling on the basis of the best interpretation

25. Impact of Human Rights Act • When determining the meaning of legislation courts may, where necessary be able to: • ‘read in’ extra words • or even ignore words • To make legislation compatible

26. Impact of Human Rights Act • Sovereignty • Provisions of the Convention apply to all courts • Supremacy of Parliament is limited by the HRA 1997