The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Rights in Strasbourg. It also totally abolished the death penalty in UK law (although this was not required by the Convention in force for the UK at that time).
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is to issue a declaration of incompatibility. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary sovereignty (see: Constitution of the United Kingdom). An individual can still take his case to the Strasbourg court as a last resort.
When John Major's Conservative government was removed from office after a landslide victory of Labour in the 1997 parliamentary elections, the newly formed government under Tony Blair kept its manifesto promise and incorporated the European Convention on Human Rights into law through the Human Rights Act 1998. As the 1997 white paper "Rights Brought Home" stated,
It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost.
The Conservatives had historically been unwilling to incorporate these rights into domestic law, partly because it felt the common law provided sufficient protection for the rights and freedom of citizens and partly because legal systems in the British colonies did not comply with international human rights standards.
The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. It also includes the Courts. However, it does not include Parliament when it is acting in its legislative capacity.
Stronger provisions exist for the devolved Scottish administration under the Scotland Act 1998, which provides that the Scottish Executive and the Scottish Parliament have no power to do anything contrary to the ECHR.
Despite the fact that the Act states that it applies to public bodies the Human Rights Act has had increasing influence on private law ligitation between invididual citizens leading some academics to state that it has horizontal effect as well as vertical effect (as in disputes between the state and citizens). This is because section 6(1) of the Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens.
Even though the Act's interpretative instruction to interpret legislation as compatible with Convention rights as so far as is possible in section 3(1) applies only to statute and not common law, it has been argued that section 6 of the Act shows that the only law which should not be subject to human rights obligations is incompatible legislation. Therefore the common law could be developed in a way which is compatible with the Convention in an incremental fashion. However, the Human Rights Act cannot be used to create new courses of action in private law.
Section 7 enables any person, with standing, to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. A person will have standing to do so provided they would satisfy the "victim test" stipulated by Article 34 of the Convention. This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, Judicial Review.
If it is held that the public authority has violated the claimant's Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.
However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation. The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights.
Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it. The power to do so is restricted to the higher Courts. Such a Declaration has no direct impact upon the continuing force of the legislation but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.
Note that this provision was not required by the European Convention (protocol 6 permits the death penalty in time of war; protocol 13, which prohibits the death penalty for all circumstances, did not then exist); rather, the government introduced it as a late amendment in response to parliamentary pressure.
During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard declared their intention to "overhaul or scrap" the Human Rights Act. According to him "the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head".
He cited a number of examples of how, in his opinion, the Human Rights Act had failed: "the schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his right to education; the convicted rapist given £4000 compensation because his second appeal was delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who thumb their nose at the law allowed to stay on green belt sites they have occupied in defiance of planning laws".
Some commentators have criticised Howard's claim that a prisoner serving a life sentence was allowed to obtain hard-core pornography in prison. In R (on the application of Morton) v Governor of Long Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him access to hard-core pornography claiming that the governor's policy was a breach of his Article 10 right to freedom of expression; however, the claim was actually rejected.
In 2007, the human rights organisation JUSTICE released a discussion paper entitled 'A Bill of Rights for Britain?', examining the case for updating the Human Rights Act with an entrenched Bill
Former Home Secretary John Reid argued that the Human Rights Act was hampering the fight against global terrorism in regard to controversial control orders:
"There is a very serious threat - and I am the first to admit that the means we have of fighting it are so inadequate that we are fighting with one arm tied behind our backs. So I hope when we bring forward proposals in the next few weeks that we will have a little less party politics and a little more support for national security.
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