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Human Rights Act 1998

Human Rights Act 1998

Overview
The Human Rights Act 1998 (c 42) is an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 which received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

. 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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...

.

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.
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Encyclopedia
The Human Rights Act 1998 (c 42) is an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 of the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 which received Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 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
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

. 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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 in Strasbourg
Strasbourg
Strasbourg is the capital and principal city of the Alsace region in eastern France and is the official seat of the European Parliament. Located close to the border with Germany, it is the capital of the Bas-Rhin département. The city and the region of Alsace are historically German-speaking,...

.

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 to 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 issue a declaration of incompatibility
Declaration of incompatibility
A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...

. 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
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...

 (see: Constitution of the United Kingdom
Constitution of the United Kingdom
The constitution of the United Kingdom is the set of laws and principles under which the United Kingdom is governed.Unlike many other nations, the UK has no single core constitutional document. In this sense, it is said not to have a written constitution but an uncodified one...

). An individual can still take his case to the Strasbourg court as a last resort.

Historical context



Convention was drafted by the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

 after World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...

. Sir David Maxwell-Fyfe was the Chair of the Committee on Legal and Administrative Questions of the Council's Consultative Assembly from 1949 to 1952, and oversaw the drafting of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

. It was designed to incorporate a traditional civil liberties
Civil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...

 approach to securing "effective political democracy", from the strong traditions of freedom and liberty in the United Kingdom. As a founding member of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...

, the UK acceded to the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 in March 1951. However it was not until Harold Wilson's government in the 1960s that British citizens were able to bring claims in the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

. Over the 1980s, it was widely perceived that the executive misused its power and that, with movements like Charter 88 (which invoked the 300th anniversary of the Glorious Revolution
Glorious Revolution
The Glorious Revolution, also called the Revolution of 1688, is the overthrow of King James II of England by a union of English Parliamentarians with the Dutch stadtholder William III of Orange-Nassau...

 in 1688 and the Bill of Rights 1689
Bill of Rights 1689
The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...

) a British Bill of Rights was needed to secure a human rights culture at home.

The Labour government incorporated the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 into law through the Human Rights Act 1998. 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.

Structure of the Act


The Human Rights Act places a duty on all courts and tribunals in the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...

 to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...

 (section 3(1)). The limits to judicial creativity have been much debated but it is now clear that the courts cannot interpret Acts of Parliament in a way that would undermine their clear meaning. The declaration does not invalidate the legislation, but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act. As of August 2006, 20 declarations had been made, of which 6 were overturned on appeal.

The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. However, it does not include Parliament when it is acting in its legislative capacities.

Despite the fact that the Act states that it applies to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect
Vertical effect
Vertical effect refers to, in English law, the way in which the Human Rights Act impacts on the relationship between individual citizens and the state...

 (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.

Rights protection under the Act



The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights. For these purposes public authority includes any other person "whose functions are functions of a public nature." It also explicitly includes the Courts. Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1). In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

.

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
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

.

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
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory 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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...

 primary legislation
Primary legislation
Primary legislation is law made by the legislative branch of government. This contrasts with secondary legislation, which is usually made by the executive branch...

. 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
Declaration of incompatibility
A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...

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
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

. In order to provide swift compliance with the Convention the Act
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 allows Ministers
Minister (government)
A minister is a politician who holds significant public office in a national or regional government. Senior ministers are members of the cabinet....

 to take remedial action to amend even offending primary legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...

 via subordinate legislation.

Abolition of the death penalty


The Act (section 21(5)) completely abolished the death penalty in the United Kingdom
Capital punishment in the United Kingdom
Capital punishment in the United Kingdom was used from the creation of the state in 1707 until the practice was abolished in the 20th century. The last executions in the United Kingdom, by hanging, took place in 1964, prior to capital punishment being abolished for murder...

, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences (although these provisions had not been used for several decades). (The death penalty for treason had already been abolished by the Crime and Disorder Act 1998
Crime and Disorder Act 1998
The Crime and Disorder Act 1998 is an Act of the Parliament of the United Kingdom. The Act was published on 2 December 1997 and received Royal Assent in July 1998...

.)

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.

Notable human rights case law

  • Lee Clegg
    Lee Clegg
    Sergeant Lee Clegg is a British Army soldier who was convicted of murder for his involvement in the shooting dead of two teenage joyriders in West Belfast, Northern Ireland. His conviction was later overturned.-Shooting:...

    's murder conviction gave rise to the first case invoking the Act, brought by The Times
    The Times
    The Times is a British daily national newspaper, first published in London in 1785 under the title The Daily Universal Register . The Times and its sister paper The Sunday Times are published by Times Newspapers Limited, a subsidiary since 1981 of News International...

    in October 2000 which sought to overturn a libel ruling against the newspaper.

  • Campbell v. MGN Ltd.
    Campbell v. MGN Ltd.
    Campbell v Mirror Group Newspapers Ltd [2004] was a House of Lords decision regarding human rights and privacy in English law.-Facts:Well-known model Naomi Campbell was photographed leaving a rehabilitation clinic, following public denials that she was a recovering drug addict...

    [2002] EWCA Civ 1373, Naomi Campbell
    Naomi Campbell
    Naomi Campbell is a British model. Scouted at the age of 15, she established herself among the top three most recognisable and in-demand models of the late 1980s and early 1990s, and she was one of six models of her generation declared "supermodels" by the fashion world...

     and Sara Cox
    Sara Cox
    Sara Cox , known as "Coxy", is an English TV presenter and radio DJ, most well known for presenting the breakfast show on BBC Radio 1 between 2000 and 2003...

     both sought to assert their right to privacy under the Act. Both cases were successful for the complainant (Campbell's on the second attempt; Cox's attempt was not judicially decided but an out of court settlement was reached before the issue could be tested in court) and an amendment to British law to incorporate a provision for privacy is expected to be introduced.

  • Venables and Thompson v. News Group Newspapers [2001] 1 All ER 908, the James Bulger murder case tested whether the Article 8 (privacy) rights of Venables and Thomson, the convicted murderers of Bulger, applied when four newspapers sought to publish their new identities and whereabouts, using their Article 10 rights of freedom of expression. Dame Butler-Sloss granted permanent global injunctions not to publish the material because of the disastrous consequences such disclosure might have for the former convicts, not least the possibility of physical harm or death (hence claims for Article 2 rights were entertained, and sympathised with).

  • A and Others v. Secretary of State for the Home Department
    A and Others v. Secretary of State for the Home Department
    A and others v Secretary of State for the Home Department [2004] UKHL 56 is a UK human rights case heard before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was...

    [2004] UKHL 56, on 16 December 2004, the House of Lords
    House of Lords
    The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

     held in that Part 4 of the Anti-terrorism, Crime and Security Act 2001
    Anti-terrorism, Crime and Security Act 2001
    The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...

    , under whose powers a number of non-UK nationals were detained in Belmarsh Prison, was incompatible with the Human Rights Act. This precipitated the enactment of the Prevention of Terrorism Act 2005
    Prevention of Terrorism Act 2005
    The Prevention of Terrorism Act 2005 is an Act of the Parliament of the United Kingdom, intended to deal with the Law Lords' ruling of 16 December 2004 that the detention without trial of eight foreigners at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001...

     to replace Part 4 of the 2001 Act.

  • Amesh Chauhan and Dean Hollingsworth were photographed by a speed camera in 2000. As is standard practice for those caught in this way, they were sent a form by the police asking them to identify who was driving the vehicle at the time. They protested under the Human Rights Act, arguing that they could not be required to give evidence against themselves. An initial judgment, by Judge Peter Crawford at Birmingham Crown Court, ruled in their favour but this was later reversed.

  • Price v. Leeds City Council [2005] EWCA Civ 289, on 16 March 2005 the Court of Appeal
    Court of Appeal of England and Wales
    The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

     upheld a High Court ruling that Leeds City Council could not infringe the right to a home of a Roma family, the Maloneys, by evicting them from public land. The court however referred the case to the House of Lords
    House of Lords
    The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

     as this decision conflicted with a ruling from the European Court of Human Rights
    European Court of Human Rights
    The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

    .

  • In March 2006, the High Court in London ruled against a hospital's bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19-month-old baby has the genetic condition spinal muscular atrophy
    Spinal muscular atrophy
    Spinal Muscular Atrophy is a neuromuscular disease characterized by degeneration of motor neurons, resulting in progressive muscular atrophy and weakness. The clinical spectrum of SMA ranges from early infant death to normal adult life with only mild weakness...

    , which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation would cause an 'intolerable life'.

  • Connors v. UK, a judgment given by the European Court of Human Rights
    European Court of Human Rights
    The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

    , declared that travellers who had their licences to live on local authority-owned land suddenly revoked had been discriminated against, in comparison to the treatment of mobile-home owners who did not belong to the traveller population, and thus their Article 14 (protection from discrimination) and Article 8 (right to respect for the home) rights had been infringed. However, there has never been a case where the Act has been successfully invoked to allow travellers to remain on greenbelt land, and indeed the prospects of this ever happening seem highly unlikely after the House of Lords
    House of Lords
    The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

     decision in Kay and others and another v. London Borough of Lambeth and others heard with Price v Leeds City Council which severely restricted the occasions on which Article 8 may be invoked to protect someone from eviction in the absence of some legal right over the land.

  • Afghan hijackers case 2006, in May 2006, a politically controversial decision regarding the treatment of 9 Afghan men who hijacked a plane to flee from the Taliban, caused widespread condemnation by many tabloid newspapers (most notably The Sun
    The Sun (newspaper)
    The Sun is a daily national tabloid newspaper published in the United Kingdom and owned by News Corporation. Sister editions are published in Glasgow and Dublin...

    ), the broadsheets and the leaders of both the Labour Party
    Labour Party (UK)
    The Labour Party is a centre-left democratic socialist party in the United Kingdom. It surpassed the Liberal Party in general elections during the early 1920s, forming minority governments under Ramsay MacDonald in 1924 and 1929-1931. The party was in a wartime coalition from 1940 to 1945, after...

     and the Conservative Party
    Conservative Party (UK)
    The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...

    . It was ruled by an Immigration
    Immigration
    Immigration is the act of foreigners passing or coming into a country for the purpose of permanent residence...

     Tribunal
    Tribunals in the United Kingdom
    The tribunal system of the United Kingdom is part of the national system of administrative justice with tribunals classed as non-departmental public bodies...

    , under the Human Rights Act, that the hijackers could remain in the United Kingdom; a subsequent court decision ruled that the government had abused its power in restricting the hijackers' right to work.

  • Mosley v News Group Newspapers Limited (2008), Max Mosley
    Max Mosley
    Max Rufus Mosley is the former president of the Fédération Internationale de l'Automobile , a non-profit association that represents the interests of motoring organisations and car users worldwide...

     challenged an invasion of his private life after the News of the World exposed his involvement in a Sado-masochistic sex act. The case resulted in Mr Mosley being awarded £60,000 in damages.

From the Conservative right


During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard
Michael Howard
Michael Howard, Baron Howard of Lympne, CH, QC, PC is a British politician, who served as the Leader of the Conservative Party and Leader of the Opposition from November 2003 to December 2005...

 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
Political correctness
Political correctness is a term which denotes language, ideas, policies, and behavior seen as seeking to minimize social and institutional offense in occupational, gender, racial, cultural, sexual orientation, certain other religions, beliefs or ideologies, disability, and age-related contexts,...

, 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
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....

 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
Green belt
A green belt or greenbelt is a policy and land use designation used in land use planning to retain areas of largely undeveloped, wild, or agricultural land surrounding or neighbouring urban areas. Similar concepts are greenways or green wedges which have a linear character and may run through an...

 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
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...

 claiming that the governor's policy was a breach of his Article 10 right to freedom of expression; however, the claim was actually rejected.

The schoolboy referred to by Mr Howard was suing for compensation, not to be allowed back into the classroom, since he was already a university student at the time of the court case. In addition, the claim was rejected.

Politicised judges?


One of the major criticisms of the Human Rights Act prior to its introduction was that it would result in unelected judges making substantive judgments about government policies and "legislating" in their amendments to the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 resulting in a usurpation of Parliament's legislative supremacy. In the area of judicial review for example the case of R (on the application of Daly) v Secretary of State for the Home Department
R (on the application of Daly) v Secretary of State for the Home Department
R v Secretary of State for the Home Department was a House of Lords case concerning the rights of a prisoner when his cell is searched by prison officers. The case concerned whether cell searches contravened a prisoners right to private correspondence with his solicitor...

highlights how the introduction of a proportionality test borrowed from ECHR jurisprudence has allowed a greater scrutiny of the substantive merits of a government's policy, meaning that judicial review has become more of an appeal than a review.

The interpretative obligation under s(3)(1) to read primary legislation as Convention compliant, so far as is possible, is not dependent upon the presence of ambiguity in legislation. This means that s(3) of the Human Rights Act could require the court to depart from the unambiguous meaning that legislation would otherwise bear subject to the constraint that this modified interpretation must be one “possible” interpretation of the legislation. Paul Craig
Paul Craig
Paul Craig is currently Professor of English Law at the University of Oxford and a Fellow of St John's College. Craig is a specialist in Administrative and EU Law....

 argues that this results in the courts adopting linguistically strained interpretations instead of issuing declarations of incompatibility.

However the criticism that judges are legislating can be countered by the fact that courts are unable to interpret legislation in a way which is "inconsistent with a fundamental feature of the legislation". Neither can judges interpret legislation in such a way that would bring about a far-reaching change that would be best dealt with by Parliament.

Journalistic freedom


In 2008 the editor of the Daily Mail
Daily Mail
The Daily Mail is a British daily middle-market tabloid newspaper owned by the Daily Mail and General Trust. First published in 1896 by Lord Northcliffe, it is the United Kingdom's second biggest-selling daily newspaper after The Sun. Its sister paper The Mail on Sunday was launched in 1982...

criticised the Human Rights Act for allowing, in effect, a right to privacy at English law despite the fact that Parliament has not passed such legislation. Paul Dacre
Paul Dacre
Paul Michael Dacre is a British journalist and current editor of the British newspaper the Daily Mail. He is also editor in chief of the Mail group titles, which also includes The Mail on Sunday. He is also a director of the Daily Mail and General Trust plc and was a member of the Press Complaints...

 was in fact referring to the indirect horizontal effect of the Human Rights Act on the doctrine of breach of confidence
Breach of confidence
The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of...

 which has moved English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...

 closer towards a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 right to privacy. In response the Lord Chancellor Lord Falconer stated that the Human Rights Act had been passed by Parliament, that people's private lives needed protection and that the judge in the case had interpreted relevant authorities correctly.

A Bill of Rights for Britain?


Following controversial rulings from both the European Court of Human Rights
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...

 and the Supreme Court of the United Kingdom
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

, David Cameron again suggested a British Bill of Rights. The government commission set up to investigate the case for a Bill of Rights had a split of opinion.

Howard's successor as Leader of the Opposition, David Cameron
David Cameron
David William Donald Cameron is the current Prime Minister of the United Kingdom, First Lord of the Treasury, Minister for the Civil Service and Leader of the Conservative Party. Cameron represents Witney as its Member of Parliament ....

, vowed to repeal the Human Rights Act if he was elected, instead replacing it with a 'Bill of Rights' for Britain. Following the 2010 general election, the Conservative – Liberal Democrat Coalition Agreement
Conservative – Liberal Democrat Coalition Agreement
The Conservative – Liberal Democrat Coalition Agreement was a policy document drawn up following the 2010 general election in the United Kingdom...

 says that the issue will be investigated.

In 2007, the human rights organisation JUSTICE
JUSTICE
JUSTICE is a human rights and law reform organisation based in the United Kingdom. It is the British section of the International Commission of Jurists, the international human rights organisation of lawyers devoted to the legal protection of human rights worldwide...

 released a discussion paper entitled A Bill of Rights for Britain?, examining the case for updating the Human Rights Act with an entrenched bill.

Left-wing criticism


In contrast, some have argued that the Human Rights Act does not give adequate protection to rights because of the ability for the government to derogate from Convention rights under article 15 especially in relation to terrorism legislation. Recent cases such as R (ProLife Alliance) v. BBC
R (ProLife Alliance) v. BBC
R v. BBC was a House of Lords case concerning the extent to which matters of good taste and decency are sufficient to justify the censorship of a Public Election Broadcast. The ProLife Alliance submitted a video that showed the results of an abortion. The video was held to violate statutory...

[2002] EWCA Civ 297 have been decided in reference to common law rights rather than statutory rights leading to the possibility of judicial activism
Judicial activism
Judicial activism describes judicial ruling suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint. The definition of judicial activism, and which specific decisions are activist, is a controversial...

.

Terrorism


Senior Labour politicians have criticised the Human Rights Act and the willingness of the judiciary to invoke declarations on incompatibility against terrorism legislation. Former Home Secretary Dr John Reid argued that the Human Rights Act was hampering the fight against global terrorism in regard to controversial control order
Control order
A control order is an order made by the Home Secretary of the United Kingdom to restrict an individual's liberty for the purpose of "protecting members of the public from a risk of terrorism". Its definition and power were provided by Parliament in the Prevention of Terrorism Act 2005...

s:

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.

See also

  • Human rights in the United Kingdom
    Human rights in the United Kingdom
    Human rights in the United Kingdom are set out in common law, with its strongest roots being in the English Bill of Rights 1689, as well as the European legislation. At the same time, the UK has also had a history of both de jure and de facto discrimination, and, in recent history, occasional...

  • Joint Committee on Human Rights
    Joint Committee on Human Rights
    The Joint Committee on Human Rights is a select committee of both the House of Commons and House of Lords in the Parliament of the United Kingdom...

  • Declaration of incompatibility
    Declaration of incompatibility
    A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998, which incorporated the European Convention of Human Rights into the UK domestic...

  • Human Rights Act
    Human Rights Act
    A human rights act is a statute that sets out individual rights and freedoms under the law. Many jurisdictions have bills of rights enshrined into law and called the "Human Rights Act". This naming convention is commonly used in Commonwealth nations...


External links