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Title: Human Rights Act 1998. An Introduction
- Comes into force on 2 October 2000
- European Convention
for the Protection of Human Rights and Fundamental Freedoms: a treaty
established under the umbrella of the Council of Europe (itself established
1949). The Council now has 47(?) member states. Members of the Council
ratify the Convention.
The Convention established the European Court of Human Rights and the Commission, sitting in Strasbourg.
- The UK ratified the Convention in 1951.
- The Human Rights Act brings the Convention into domestic law ie the law of England and Wales
- The Convention comprises Articles and various Protocols. It provides a minimum standard of protection for human rights and fundamental freedoms. The ECtHR interprets the Convention as a living instrument and seeks to reflect changes in society and in values of society as these develop. More recent decisions of the ECtHR are thus more persuasive than older decisions.
- Convention rights fall into a number of categories.
Absolute rights. (Breach cannot in any circumstance be justified).
Article 2 Right to life
Article 3 Prohibition of torture
Article 7 No punishment without law
- Qualified rights. (A prima facie breach can under certain circumstances be justified).
Article 6 Right to a fair trial
Article 8 Respect for private and family life
Article 10 Freedom of expression
First Protocol Article 1 Protection of property
[These are examples only; neither list is comprehensive.]
- Section 2 HRA requires any court or tribunal, when determining a question which has arisen in connection with a Convention right, to take into account (amongst other matters) any judgment, decision, declaration or advisory opinion of the ECtHR.
- The Convention affects the interpretation of existing legislation:
"So far as it is possible to do so.....legislation......must be read and given effect in a way which is compatible with Convention rights" (s.3(1))
- When considering any issue under the HRA, and in particular when interpreting legislation, every court and tribunal must try to find an interpretation compatible with Convention rights. This will require a fundamental change in the approach to construction of statutes and other relevant documents.
- The HRA imposes a requirement on public authorities to act in accordance with the Convention, so that:
"It is unlawful for a public authority to act in a way which is incompatible with a Convention right". (s.6(1)).
- In general, the HRA applies to any acts committed after the relevant provisions of the legislation have come into force.
- However, once the HRA comes into force, a defendant to proceedings brought by a public authority can rely on a Convention right even though the act in question took place before the HRA itself came into force.
- S7 HRA provides
"(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act ……………
Victim:
If a public authority infringes a Convention right:
HRA also creates some new remedies. S8(2) permits a court to make an award of damages if necessary to afford "just satisfaction" to the victim, in all the circumstances. Such an award must take into account the principles applied by the ECtHR in relation to compensation. ECtHR awards are fairly low
- Convention rights can be waived.
- However, such waiver is effective only if it is established in an unequivocal manner and is attended by the minimum safeguards commensurate with the importance of the right.
- Under the HRA the waiver will have to be:
- clear and unequivocal;
- made in the absence of constraint; and
- made in full knowledge of the nature and extent of the right.
- In addition, the court may refuse to accept that a right has been waived if there are compelling policy considerations to the contrary.
- the rights themselves are construed in a broad and purposive way; the limitation must be construed narrowly;
- first decide whether there has been an interference with the right;
- then, looking at the justification offered for the interference in accordance with the law, consider whether:
- the interference has some basis in the national law; (the national law must be accessible and precise);
- the interference is necessary in a democratic society; (the measure must pursue one of the legitimate aims set out in the second sub paragraph; it must answer a pressing social need);
- there is reasonable relationship of proportionality between the means employed and the aim sought to be achieved; the court must ask whether the measure is carefully designed to meet the objective in question; it must not be arbitrary unfair or based on irrational considerations; does the limitation impair as little as possible the right; even so, is it so severe in effect as to outweigh the objective.