The Human Rights Act protects everyone’s human rights; young and old, rich and poor, yours and mine. Anybody’s privacy could be breached by the prying eyes of the state, anybody can be wrongly accused of a crime, and anybody could fall foul of careless and insensitive decision-making by public authorities. Hopefully this won’t happen to you but if it did, you might find you need to rely on the Human Rights Act to help you.
The Human Rights Act doesn’t protect an endless catalogue of rights. Indeed, it only protects 15 well-established fundamental rights and freedoms, like the right to life and free speech. Unfortunately however, myths abound about claims that have been upheld using the Act.
Many other democracies protect a far broader range of rights. In fact the rights contained in the Human Rights Act are so fundamental that no other modern democracy has scrapped their equivalent human rights legislation. Just as the USA would not scrap its Bill of Rights we should not scrap ours.
The HRA protects the rights of everyone. The protection of victims of crime and human rights abuses lies at the heart of human rights law. Indeed many of the rights protected under the HRA can be limited in the interests of public safety, in order to protect national security or to prevent an offence being committed. The Human Rights Act also puts positive obligations on the State to protect victims. The HRA requires serious offences like murder, terrorism and rape to be investigated by the police, and requires the State to take practical steps to protect people whose rights are threatened by others. The Act specifically states that those suspected of or convicted of crimes can be deprived of their liberty. Human rights law has given bereaved relatives the right to an independent public investigation into the circumstances surrounding the death of their loved ones, and the right to be involved in the investigation.
The Human Rights Act already requires the courts to balance human rights against the interests of public safety. There are some rights that are absolute and can never be limited, for example the right not to be tortured or enslaved. However most of our rights and freedoms can be limited where necessary and proportionate. For example, the Act allows the right to freedom, speech, protest and privacy to be restricted where this is necessary to protect public safety or national security. The Act specifically says those suspected of or convicted of crimes can be deprived of their liberty. Human rights law also requires the state to protect our safety and security.
Human rights legislation was drafted after the horrors of the Second World War. Thankfully, countries like the UK that have remained committed to protecting human rights have not seen a repeat of such atrocities. Sadly, war and civil unrest is still rife in countries where human rights violations remain a tragic reality. We cannot call for an end to rights abuses elsewhere in the world unless we show a commitment to protecting rights at home as well.
One of the main reasons for the Act was the cost and delay caused by the fact that people could only enforce their human rights by taking cases to a court in Strasbourg. People’s rights can now be protected by British courts, which is far more efficient and cost-effective. But the Human Rights Act is not just about lawyers and courts. It has helped thousands of people protect their human rights without the need for costly court cases. Local authorities have reviewed their policies to make sure they treat the vulnerable with dignity and respect and users of a wide range of public services have used the Act as a tool to argue for better and fairer services.
The HRA was independently passed by the UK Parliament in
1998. It incorporates the
Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention was adopted by the
Council of Europe in 1950 – a body set up after WWII to promote democracy,
human rights and the rule of law in Europe. This body is completely separate to the EU. The UK played a major role in the
negotiations and drafting of the Convention which it voluntarily adopted in
More about international human rights.
The UK has a long and proud history in leading the development
and recognition of fundamental rights and freedoms. In fact, many of the rights in the HRA had their genesis in
principles that emerged from Magna Carta, the 1689 Bill of Rights, the Habeas
Corpus Acts and the common law.
However, the common law is liable to be overridden at any time by
statute and provides no possible recourse when rights are undermined. There is
also nothing in Magna Carta or other historic legislation that protects free
speech, personal privacy, the right to protest, non-discrimination etc. Many of the rights we have long taken
for granted found no protection in domestic law until the HRA gave effect to
them. Until the advent of the HRA British
residents had to rely solely on the good-will of government for protection or
take the long and costly route to the European Court of Human Rights. While the freedom of a person to do
anything that is not prohibited by law is an important part of our constitution
this principle gives no protection to individuals from misuse of power by the
state or public bodies.
More about the history of human rights.
Unlike most Bills of Rights and constitutional documents around the world, the HRA does not give the courts any power to strike down legislation. Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament. Under the HRA, if one of the higher courts finds legislation to be incompatible with human rights it can issue a declaration of incompatibility leaving it up to Parliament to decide how best to respond.
One of the cornerstones of our democratic system is an independent judiciary that interprets and applies the law. Judicial decision-making is fundamental to the rule of law, and the powers given by the HRA to the courts fall squarely within this historic function.
Human rights and responsibilities are inextricably bound together. Rights mean little if others do not take responsibility to protect them. And most rights are not absolute – instead they can be limited if necessary to protect the rights of others. So, for example, the right to free speech explicitly carries with it duties and responsibilities, such as not to incite violence or wilfully defame others.
The HRA also explicitly states that none of the rights can be interpreted as implying that anyone has the right to intentionally destroy other people’s human rights or limit them more than is allowable under the HRA. While many rights come with responsibilities rights are also universal and inalienable in nature. Self-evidently a person could not, for example, be denied a right to a fair trial because they are suspected of having committed a crime.
There is no general prohibition in the HRA on the deportation of non-nationals. If the Government decides that a citizen of another country who has limited ties to the UK should no longer be permitted to stay and can be safely sent back to their country of origin there is nothing in the HRA to prevent this. However, under international human rights law the absolute prohibition on torture prevents countries from sending a person anywhere where there is a substantial risk that the person will be tortured. This is entirely logical. If we abhor torture we must also abhor the outsourcing of torture – if governments were only prohibited from torturing their own citizens but permitted to send people to places of torture, there would be little distinction between deportation and extraordinary rendition. Even before the HRA was enacted the Convention Against Torture, the European Convention on Human Rights and the International Convention on Civil and Political Rights prohibited the UK from deporting people to places of torture.
Depending on the facts of each individual case a person’s right to a family life may be interfered with in some cases if deported. Home Office policy is to consider the facts of each case, including the reason for the deportation (i.e. whether a serious or minor offence has been committed), the length of time the person has been in the UK and whether the person has young children born in the UK or a British spouse etc. This is the type of balancing exercise that would as a matter of policy be carried out by the Home Office regardless of the HRA, but the HRA has provided greater transparency, accountability and oversight of Home Office decisions in this area.
More on deportation to torture.
In 2001 there were numerous media reports that the serial killer Dennis Nilsen was using human rights law to demand access to hardcore pornography in prison. Since then it has been widely reported that human rights law gives prisoners access to hardcore pornography. However, while Dennis Nilsen tried to claim he was entitled to hardcore pornography under human rights law, the court denied him permission even to bring the claim, on the basis there was no arguable case that his human rights had been breached.
Since 2007 there have been reports that police are unable to release photographs of dangerous criminals on the run because this would breach their human rights. However, the HRA itself protects the right to life and imposes an obligation on the State to protect people from serious criminal attack. In some circumstances the Government may actually be under a duty under human rights law to publicise photographs of dangerous convicted criminals if this would protect others. The right to privacy can be limited for the protection and detection of crime as long as it is necessary and proportionate to do so – seeking to locate dangerous criminals and warn the public is certainly not a breach of human rights law.
In 2006 a suspected car thief fleeing police was besieged on a roof for 20 hours. During the course of the 20 hour stand-off the police negotiating team gave the man Kentucky Fried Chicken and cigarettes. It was widely reported that the police did this in order to protect the man’s ‘well-being and human rights’. There was clearly no human right engaged – there is no human right to KFC, nor indeed to be provided with any food in such a situation. Rather, the police were using general negotiating tactics to encourage him to come down from the roof.
The HRA protects both the right to privacy and the right to free expression. At times these rights can come in to conflict with one another and when they do a balancing exercise is required. The HRA has on many occasions strengthened the free press. In particular the right to free speech (enshrined in Article 10) will protect media reports that are of public concern and in the public interest. Indeed, the right to free speech finds its only protection in UK law under Article 10 of the HRA. Article 10 has protected journalists from being required to disclose their sources and has provided protection of investigative reporting. However, it will not protect reports that are obviously false and may not protect intrusive reports relating to the private lives of individuals. In some cases the right to privacy, in conjunction with the common law, will prevent media reports into the private lives of celebrities when it is not in the public interest to report such private details.
As the HRA does not affect parliamentary sovereignty it cannot prevent the Government from bringing forward new legislation or policies, including those that infringe human rights. And yes, the HRA hasn’t prevented numerous authoritarian laws being passed just as, for example, the US Bill of Rights didn’t prevent the passing of the USA PATRIOT Act or the establishment of internment at Guantanamo Bay. As with all Acts of Parliament, it is only after laws have been enacted that the courts can turn to interpret them and if they do find legislation to be incompatible with human rights they can make a declaration of incompatibility. It is up to Parliament to ensure that all new laws respect fundamental rights and freedoms, with the HRA acting as a check on executive and legislative power after its exercise.
The remedies available under the HRA are focused on bringing any infringement of human rights to an end. A claim based on breach of human rights is not the same as a case brought under the law of negligence, where the purpose of the claim is to obtain damages. In human rights claims compensation is a secondary consideration and often not awarded at all. The HRA provides that compensation can only be awarded once all the circumstances of the case are taken into account, including what other relief is available. There is no right to compensation – it is only awarded when it is necessary to ensure ‘just satisfaction’. The courts will also consider the behaviour of an applicant before awarding damages. Very few human rights cases involve awards of damages.
In November 2004 sex offender Anthony Rice was released from prison on parole after having served 16 years of a life sentence for a violent attempted rape. He had previous convictions for rape and indecent assault. In August 2005 he raped and murdered Naomi Bryant while on release on licence. The following year a review carried out in relation to the Parole Board’s decision to release concluded that part of the reason for the early release was based on a misunderstanding of human rights considerations. Following this it was widely reported that Rice was freed ‘because of his human rights’. In reality, there is no evidence the Parole Board even considered human rights. Rice was freed because of a series of mistakes, including that relevant information about Rice’s past crimes – including a serious assault on a five year old – was not made available to the Parole Board. The Joint Committee on Human Rights has concluded that Rice was not released because of human rights considerations – a finding that the author of the 2006 review has himself endorsed. There is no human rights objection to continued incarceration of a convicted dangerous offender who had not yet served his full sentence. In fact, the right to life under Article 2 of the HRA requires the State to take steps to protect life. It is because of the right to life that Naomi Bryant’s mother has been able to secure an inquest into the circumstances leading to the death of her daughter. There is no evidence that any criminal has been released from prison early on the mistaken belief that this was required by the HRA.
More on victims' rights.
There is nothing in the HRA that prevents convicted sex offenders from being required to register on the sex offenders register. The right to privacy under Article 8 of the HRA can be limited if it is necessary and proportionate to protect public safety. The courts have held that registration on the sex offenders register does not breach human rights law. In 2010 it was, however, wrongly reported that plans to require sex offenders to disclose email addresses and online identities (for example, on Facebook) had been shelved because it would breach offenders’ human rights. Instead the European Court of Human Rights has held that the requirement to provide information to the police for inclusion on the sex offenders register is proportionate given the gravity of the harm which may be caused to the victims of sexual offences if an offender were to reoffend. Our Supreme Court has held that while life-long registration on the register can be justified, there should be a mechanism to provide simply for a review of the requirement to remain on the register long-term. A review would consider an individual’s circumstances and may well lead to a decision to continue to require registration.
The European Court of Human Rights (ECtHR) gives a margin of appreciation to member states to allow for political and cultural variations between the 47 different countries that have signed up to the Convention on Human Rights. It will also be applied where the ECtHR considers national authorities are better placed to make assessments of proportionality about rights protection. How much emphasis is placed on the margin of appreciation will depend on the nature of the human right at issue (for example, religious freedom might attract the principle whereas torture will not); the reason why the State has limited the right; and whether there are differing approaches to the issue within member states or if a country is alone in limiting the right in that way. Some commentators have suggested that only a clear and codified ‘British Bill of Rights’ would lead the ECtHR to give the UK the benefit of our home-grown values – that it requires a constitutional document like the German Basic Law before the ECtHR will defer to domestic practice. This is not how the margin of appreciation has been applied by the ECtHR (the margin of appreciation is solely an international doctrine and is not available to UK courts). The adoption of a differently named ‘British Bill of Rights’ or indeed a written constitution would have no added effect in ensuring the ECtHR applied a greater margin of appreciation to the UK.