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Chapter 4 Human rights

1 Human Rights ACT 1998

1.1 The Human Rights Act imposes a duty in "public authorities" to comply with the European Convention on Human Rights, and allows us to take action in the UK courts for violations of Convention rights.

1.2 Prior to the Act conventions rights could only be enforced in the European Court of Human Rights in Strasbourg which could be time consuming, expensive and daunting.

1.3 Now that the convention is part of UK law (HRA98) those rights can now be enforced in UK courts.

2 The rights (articles)

2.1 The main rights are:

2.1.1 the right to life (A.2)

2.1.2 prohibition of torture (A.3)

2.1.3 no slavery or forced labour (A.4)

2.1.4 right to liberty and security (A.5)

2.1.5 right to a fair trial (A.6)

2.1.6 no punishment without law (A.7) (generally therefore criminal offences should not be retrospective)

2.1.7 right to respect for privacy, family life (A.8)

2.1.8 freedom of thought, conscience and religion (A.9)

2.1.9 freedom of expression, assembly and association (A.10/A.11)

2.1.10 right to marry (A.12)

2.1.11 no discrimination in rights (A.14)

2.1.12 right to property

2.1.13 right to education

2.1.14 right to free elections.

(Note that the Articles are set out in full in your Study Text).

3 Impact on interpretation of statutes

3.1 As a 'public authority' the courts are required to construe legislation so that – as far as possible – it is compatible with the rights contained within the convention and apply existing common law in a manner that is compatible with convention rights. S2 of the Act requires future courts to take account of previous decisions of the ECHR.

If reconciliation with an Act of Parliament is not possible the existing legislation prevails although that may trigger a fast track procedure in the Act requiring Parliament to change existing laws. In such circumstances the court issues a declaration of incompatibility, it is then for the legislature to remedy the situation through new legislation. If the fast track procedure is used this gives ministers the power to alter incompatible parts of any primary legislation by way of statutory instrument.

If a court cannot reconcile 'delegated' legislation with the convention it can decide that the legislation does not apply.

It may no longer be appropriate for the courts to follow some precedents on the interpretation of statutes which pre date the Act. These may now be reviewed in light of the Act.

4 Impact on new legislation

4.1 Before the Second Reading of the Bill the Minister responsible must make a statement either that the legislation is compatible with Convention rights, or such a statement cannot be made but the government still wants to proceed. Not all of the Articles can be derogated from. Articles 2,3,4,7 and 14 are absolute rights and cannot be interfered with. In exercising the right of derogation however the member state must be both convinced of the need for derogation and that the response is proportionate to any perceived problem.

5 Impact on public authorities

5.1 Public authorities are Courts and tribunals and any other person whose functions are of a public nature eg Registrar of Companies and government departments such as the DTI.

5.2 It is unlawful for public authorities to act in a way which is incompatible with a convention right. A person who considers he has been a victim of an unlawful act by that authority may bring proceedings within 12 months of the act occurring.

5.3 The court has power to do as it thinks fit.

6 European Court of Human Rights (ECHR)

6.1 The final source of appeal (after the House of Lords) on human rights issues is the European Court of Human Rights. There is no appeal from the European Court of Human Rights to the European Court of Justice. Decisions of the ECHR must be taken into account when deciding interpretation.

NB. Note that new cases on the HRA98 are being decided all the time. The examiner plans to write an article to consider these cases. Keep checking your student accountant for developments.

7 Examinability of HRA 98

This is an area that the examiner has expressed to be important so be aware of developments that may be referred to in the press.

Make sure that you have an appreciation of how HRA 98 may impact on other syllabus areas. For example: