The Human Rights Act 1998
The Human Rights Act is possibly the most important piece of UK legislation regarding human rights.
The act came into effect in 2000 and is concerned with enforcing the terms of European Convention on Human Rights in UK Law.
The origin of the Human Rights Act
The purpose of the act was to officially make most of the rights granted by the European Convention on Human Rights (ECHR) a part of UK law. The ECHR, which itself came into effect back in 1953, had granted UK citizens with basic human rights long before the introduction of the HRA.
However, the ECHR was not officially recognised in UK law, meaning that if a UK citizen believed that his or her rights had been violated, they would need to take their case all the way to the European Court of Human Rights in Strasbourg.
With the HRA in effect, UK citizens can settle their human rights’ cases in domestic courts, without having to leave the country. Complainants can still take their cases to Strasbourg, but the European Court of Human Rights will only consider a case once it has been through the UK courts.
How does the act work?
The HRA enhances the Convention rights by clarifying that UK courts should interpret the law in a way that is compatible with Convention Rights, as well as placing an obligation on the authorities to act according to Convention Rights. Additionally the HRA gives individuals the right to go to court if they think that their Convention rights have been violated.
It is Parliament that creates laws, but it is up to the courts to interpret them. The HRA is explicit in that when they are interpreting legislation, the courts must do so in a way which doesn’t cause an individual’s Convention rights to be violated, if it is possible to do so without going against the wording of the law – essentially, where there is ambiguity, the law should be swayed in the direction which is suggested by the Convention.
An Act of Parliament is paramount, so if the courts cannot read the law compatibly, they have no choice but to apply the law as it is, even though it breaches Convention rights.
The High Court, the Court of Appeal and the House of Lords, however, have the power to make what is known as a ‘declaration of incompatibility’. This is a message to the courts to 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.
A declaration of incompatibility does not affect the validity of the incompatible legislation, and if the individuals rights are being violated by this law, the courts have no power to act to stop that breach, or to give the individual compensation for damage that the breach has caused.
There are many laws which are set out in what is known as delegated or secondary legislation. These are laws which are not made by Acts of Parliament, but are made by powers which an Act of Parliament has given to an individual or group.
For example, Parliament will often give the power to make detailed laws to a government minister rather than set out detailed provisions in an Act of Parliament. This Act will allow the minister the required power to create law, but the law itself will be laid out in regulations or orders.
If the courts discover that an item of secondary legislation is not compatible with Convention rights, they have the ability to prevent the law. This applies to all courts, not just the higher ones. The only situation where this is impossible is where the secondary legislation merely repeats a requirement of an Act.
The HRA makes public authorities act in a way that does not violate Convention rights. Private Citizens and bodies will not be public authorities for the purposes of the HRA unless they are performing a public function. Whether an individual or body is a public authority can be very difficult to determine. As there is no definition of a public authority in the HRA, the courts will have to determine this.
If a public authority has violated the Convention rights of an individual, or is proposing to, the individual can bring court proceedings against the public authority. It is possible for the individual to raise a violation of their Convention rights as a defence in any court proceedings against them. In either case, the individual can only use the Convention if they are a victim of the alleged violation.
Usually when taking court proceedings against a public authority by the HRA, the individual will be seeking a declaration that the public authority has violated their Convention rights or is proposing to do so.
If the violation is continuing they will also want an order that the public authority should stop acting in a way that violates the Convention rights of the individual. They may seek compensation, though the courts have said that it is not always correct for them to give this.
Enforcing your human rights
The public authority could be able to defend itself by claiming that it had no choice but to act in such a way because it was required to do so by an Act of Parliament. When this happens, the best you can hope for is a declaration of incompatibility.
In the majority of cases the correct court proceedings to pursue against a public authority under the HRA will be an application for judicial review. The rules of court need an application for judicial review to be brought promptly and in any event within three months of the decision or action being challenged.
The HRA also allows an individual to bring an action for violation of the individual's Convention rights under the HRA itself. This action must begin within a year of the alleged violation.
Private individuals and bodies
It is not possible to take proceedings under the HRA against private individuals and bodies, as they are not required by the HRA to respect Convention rights. However, the HRA will have an effect on court proceedings between private individuals or bodies, as the courts themselves are considered public authorities under the HRA, and are required to develop and interpret preexisting laws in such a way that they are compatible with Convention Rights.
The law of breach of confidence is one example of this. This has now been developed by the courts which allow them to protect the rights of individuals to respect for their private and family lives under Article Eight of the Convention, even where the intrusion is by private bodies such tabloids.
Taking your case to the European Court of Human Rights
The majority of cases the European Court of Human Rights deals with are held without a hearing. The hearing reaches its conclusions through study of written representations made by the two parties. When the ECHR holds a hearing, most of the time it will happen prior to the ECHR deciding on the admissibility of the individual’s application. It will, however, have a hearing after an application has been found admissible, if there hasn’t been one already.
There is a system of legal aid in the ECHR which can give small fees to a lawyer. The individual can ask for legal aid with their application when the Government has been made aware of it. Legal aid can be most beneficial if it pays for the individual’s and the individual’s lawyer’s travel expenses if the ECHR has a hearing on your case. The individual will only receive legal aid if the Legal Services Commission decides that they are able to get legal aid in the UK.
A lawyer may consider representing the individual under a conditional fee agreement if they are not eligible for legal aid. This means usually that the lawyer is paid if the case is won and the legal costs that the individual incurs are paid by the UK Government. It can be hard to find a lawyer willing to take this risk however, as not many applications to the ECHR are won.
If the individual loses his case they will not be liable for legal costs of the UK Government, however.
It is possible to make an application to the ECHR itself, but it would be wise to find a solicitor who is experienced with ECHR business to work for you. The vast majority of applications are judged as inadmissible early on and are therefore not divulged to the UK Government.
It is possible that having a lawyer by your side could help you through this stage. By the rules of the ECHR, you must be represented by a lawyer after the ECHR has decided to hold a hearing.
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