HUMAN RIGHTS ACT 1998
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 unlawful 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 (see: Constitution of the United Kingdom). An individual can still take his case to the Strasbourg court as a last resort.
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
For a summary of the rights actually recognised under the law, see the European Convention on Human Rights article.
Declarations of incompatibility
Declarations of incompatibility may be made only by designated courts: the House of Lords, the Court of Appeal, the High Court, the Judicial Committee of the Privy Council and the Courts-Martial Appeal Court. If a court is considering making a declaration, it must inform the Crown, who may then be joined as a party. The offending legislation will continue to apply as worded and the declaration will not affect the parties to the proceedings but will, rather, act as a clear signal to Parliament. The Government considers that a declaration will almost certainly lead to a change in legislation but, of course, this is not a certainty. However, what would happen when the House of Lords issues or confirms an incompatibilty and the Government refuses to act remains unclear; it is assumed that the European Court of Human Rights, as a court of review, must accept the UK court's judgement in declaring the incompatibility and find against the Government.
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)(Cox's attempt was not judicially decided but an out of court settlement was reached before the issue could be tested in court) 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 could 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.
In March of 2006, the High Court in London ruled against a hospital's bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19-month-old baby has genetic condition spinal muscular atrophy - which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation could be living an 'intolerable life'.
Political context that led to the passage of the Human Rights Act
When John Major's Conservative government was removed from office after a landslide victory of Labour in the 1997 parliamentary elections the newly formed government under Tony Blair kept its manifesto promise and incorporated the European Convention on Human Rights into law through the Human Rights Act 1998.
As the 1997 white paper "Bringing Rights Home" stated: "It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts - without this inordinate delay and cost".
The Conservatives had historically been unwilling to incorporate these rights into domestic law. Partly because it felt the common law provided sufficient protection for the rights and freedom of citizens and partly because legal systems in the British colonies did not comply with international human rights standards.
During the campaign for the 2005 parliamentary elections the Conservatives under Michael Howard vowed to "overhaul or scrap" the Human Rights Act. According to him "the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today and warning that the politically correct regime ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head".
He cited a number of examples of how the Human Rights Act had 'failed': "the schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his right to education; the convicted rapist given £4000 compensation because his second appeal was delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who thumb their nose at the law allowed to stay on green belt sites they have occupied in defiance of planning laws; and a convicted serial killer allowed hard core porn in prison because of his right to information and freedom of expression".
It is interesting to note that like many alleged perversions of the Human Rights Act, the claim that a prisoner serving a life sentence was allowed to obtain hard-core pornography in prison is in reality untrue. In R (on the application of Morton) v Governor of Long Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him access to hard-core pronogrpahy claiming that the governor's policy was a breach of his Article 10 right to freedom of expression. However, the claim was actually rejected, as is commonplace for many of the stranger claims made under the Act. Despite this, when strange claims are made, uninformed observers have a tendency to assume that such a claim was upheld by the courts and to cite such claims as "evidence" of the "absurd results" the Act leads to.
Similarly, the issue relating to travellers has been grossly distorted. There is a judgment given by the ECtHR in Connors v. UK to the effect that travellers who had their licences to live on local authority owned land suddenly revoked had been discriminated against compared to the treatment of mobile-home owners who did not belong to the traveller population and thus their Article 14 (protection from discrimination) and Article 8 (right to respect for the home) had been infringed but there has never been a case where the Act has been successfully invoked to allow travellers to remain on greenbelt land and indeed the prospects of this ever happening seem highly unlikely after the House of Lords decision in Price v Leeds City Council which severely restricted the occasions on which Article 8 may be invoked to protect someone from eviction in the absence of some legal right over the land.
In May 2006, a politically controversial decision regarding the treatment of 9 Afghan men who hijacked a plane to flee from the Taliban, caused widespread condemnation in many tabloid newspapers (most notably The Sun) as well as the broadsheets and the leaders of both the Labour Party and the Conservative Party. Once again, the actual facts of the case are not widely known and have therefore been exploited by the ignorant and the reactionary as an opportunity to criticise judges and the Act. There are in fact two legal decisions, one which does concern the Act and the other which does not. Ironically, the decision which does not concern the Act is the decision which Tony Blair has referred to "as an abuse of common sense" and which is the subject of the furore in much of the media whilst the decision which does concern the Act has not been substantively challenged.
The first decision was made by an Immigration Tribunal which decided the Afghan men could not be deported back to Afghanistan because they faced a serious risk of death if they were to be returned. Although many commentators have questioned the validity of this decision, it is widely accepted that Afghanistan remains a very dangerous country especially outside of the capital city of Kabul. This is the decision which was influenced by the Act as a result of Article 2 (right to life) and Article 3 (freedom from torture). This decision was made many months before the second decision which proved to be so controversial and the government has never sought to appeal against the decision of the Immigration Tribunal.
The controversial decision arose because the government, over a period of more than 3 years, refused to properly implement the decision of the Immigration Tribunal and imposed restrictions on the Afghan men which prevented them from working and denied other benefits which would normally be due to anyone who had been granted indefinite leave to remain in the country as a refugee by the Immigration Tribunal. The men sought judicial review of the Home Office's failure to fully implement the decision of the Immigration Tribunal. Mr Justice Sullivan ruled in the High Court, in a decision which was not based in any way on the Human Rights Act but on basic principles of administrative law, that the government, in failing to implement the decision of the Immigration Tribunal had abused its power and had no rational explanation for its discrimination against the men who were entitled to a legitimate expectation that they would be granted proper refugee status like all others who are granted indefinite leave to remain by an Immigration Tribunal.
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