The Human Rights Act 1998 is a United Kingdom Act of Parliament which received Royal Assent on November 9, 1998, and came into force on October 2, 2000. Its aim is to “give further effect” in UK law to the rights contained in the European Convention on Human Rights. 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 in Strasbourg. It also totally abolished the death penalty in UK law (although this was not required by the Convention in force for the UK at that time).
In particular, the Act makes it illegal 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 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 to issue a declaration of incompatibility. 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. An individual can still take his case to the Strasbourg court as a last resort.
Jurisdiction
The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. It also includes the Courts. However, it does not include Parliament, when it is acting in its legislative capacity.
Stronger provisions exist for the devolved Scottish administration under the Scotland Act 1998, which provides that the Scottish Executive and the Scottish Parliament have no power to do anything contrary to the ECHR.
The mechanics of the Act
The act specifies that an individual claimant, not a pressure group or similar organisation, must bring a case to court. The power passed to the court under the act takes two forms
- Fault in primary legislation: If a case is brought and a piece of “primary legislation”, i.e. an Act of Parliament, is found to be in conflict with the convention then the court issues a “declaration of incompatibility”. The law in question is not immediately struck off the statue books, but ministers are given an opportunity to amend or revoke the law in Parliament. If ministers fail to take such remedial action, the complainant may take the case to the European Court. If the European Court finds in favour of the claimant, the UK Government has obligations under international law to amend the offending legislation.
- Fault in secondary legislation: If any Secondary Legislation is found to be incompatible with the Convention, the court has the right to strike off the offending legislation, provided doing so does not conflict with any primary legislation.
For a summary of the rights actually recognised under the law, see the European Convention on Human Rights article.
Abolition of the Death Penalty
The act (s. 21(5)) completely abolished the death penalty in the United Kingdom. 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 was abolished by the Crime and Disorder Act 1998.
Note that this provision was not required by the European Convention (protocol 6 permits the death penalty for certain military offences; protocol 13, which prohibits the death penalty for all circumstances, did not then exist); rather, the government introduced s. 21(5) as a late amendment in response to parliamentary pressure.
Well-known cases involving the Human Rights Act
The first case invoking the act was brought by The Times in October 2000 which sought to overturn a libel ruling against the newspaper involving the Lee Clegg murder case.
Naomi Campbell and Sara Cox both sought to assert their right to privacy under the act. Both cases were successful for the complainant (Campbell’s on the second attempt) and an amendment to British law to incorporate a provision for privacy is expected to be introduced.
The James Bulger murder case tested whether the Home Secretary, a politician, was the right person to have the final say on the length of life sentences, or whether this infringed the perpertrators’ right to a fair trial. The European Court found on the side of Bulger’s killers Jon Venables and Robert Thompson. The 2003 Criminal Justice Act removed much of the power to set sentences previously held by the Home Secretary.
On December 16 2004 the House of Lords held in A and Others v Secretary of State for the Home Department that Part 4 of the Anti-terrorism, Crime and Security Act 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 to replace Part 4 of the 2001 Act.
In 2000, Amesh Chauhan and Dean Hollingsworth were photographed by a speed camera. 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.
On March 16 2005 the Court of Appeal upheld a High Court ruling that Leeds City Council would 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 as this decision conflicted with a ruling from the European Court of Human Rights.[1]
External links
Page adapted for T-Vox from Wikipedia and other legal sources.
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