The Human Rights Act 1998 is in force in the UK from 2 October 2000. Although the UK has been a signatory to the European Convention of Human Rights for over 40 years this Act is a landmark in human rights protection because for the first time it provides enforceable civil and political rights for everyone in our own Courts.
The Act makes the Convention central to our law. Its scope is broad and its implications are far reaching. There will be significant changes required in law policy and practice as a result.
The principal effect is that the old case law decided by the courts will have to change if it does not respect the rights in the Convention. All rules and regulations will also have to comply unless an act of parliament makes this impossible. Even acts of parliament in future will have to be brought into line with Convention rights as far as it is possible to do so.
Introduction
The Human Rights Act 1998 will allow individuals whose rights under the European Convention of Human Rights have been violated by a public authority to take legal action through our own Courts in the UK. The Courts will be able to issue injunctions, award damages and quash unlawful decisions where violations have occurred.
This in-depth guide explains the substantive rights in the Convention which will be protected.
Absolute Rights
There are some rights which are absolute. These include the right to life (protected by article 2 of the Convention), freedom from torture, inhuman and exploiting treatment (Article 3 of the Convention), freedom from slavery and freedom from retrospective penalties.
All of these rights are not limited or qualified in any way and they cannot be infringed no matter how necessary it might seem to be to do so. In general there is no balancing of the right against any public interest.
Limited Rights
Some of the rights protected by the Convention will be limited including freedom from arbitrary detention (Article 5), the right to a fair trial (Article 6), and the right to marry and found a family (Article 12). In these cases the rights are set out at the beginning of each relevant Article and then there are particular limitations in the Article itself.
Qualified Rights
Several of the rights protected by the Convention are "qualified". These include Article 8 (the right to privacy and a private life), Article 9 (freedom of religion), (Article 10 (freedom of expression), Article 11 (freedom of association) and Article 14 (freedom from discrimination). The right to peaceful enjoyment of property is also qualified. Generally in such Articles the right is set out at the beginning of the Article in the Convention and then qualified in the second part. If any policy, procedure, or legislation seeks to infringe any of the substantive rights it has to pass over three hurdles in order to be compliant with the Convention:
- Firstly it must be designed to promote a specific legitimate aim "in the interests of national security, public safety etc.".
- Secondly, it must be "prescribed by law", i.e. the infringement must be properly regulated by the law.
- Thirdly, the infringement must be necessary in a democratic society. This last idea means that interference with the right has to be "proportionate". If the aim can be achieved by a less intrusive method then that method must be used instead. Any interference must be restricted as much as possible.
The way these rights will be applied in practice by Courts seeking to harmonise the approach taken in our domestic courts with that which has been taken under the Convention over the last 40 years will produce a new body of law over coming years. Some of the concepts are very complex and proper expertise will be necessary in order to determine whether or not a particular set of facts discloses any violation.