The Human Rights Act 1998 of the United
Kingdom (the "Act"), went
into full force and effect on 2 October
2000. The Act incorporates the European
Convention on Human Rights (the "Convention")
into UK law. This event represents the
first time human rights guarantees in
the UK have been codified in a single
document. In the US, this occurred in
1791, with the enactment of its bill
of rights. Since the promulgation of
the Magna Carta in 1215, positive rights
of this kind never have been guaranteed
to the UK citizenry, and those within
UK legal purview. For these protections,
reliance had to be had on the judiciary
and executive.
With the Act in effect, these rights
are now comprehensively codified in
a single, accessible document. Prior
to the Act, challenges for Convention
non-compliance had to be brought to
the European Court of Human Rights in
Strasbourg. Challenges would be entertained
only upon a showing that there was no
appropriate UK remedy. Often the result
was years of delay and expense. With
the Act in effect, cases can be directly
brought in UK courts and tribunals.
Among other things, the Act makes
it unlawful for a public authority to
act incompatibly with Convention rights.
It requires that all legislation, where
possible, be interpreted and given compatible
effect with these rights. In instances
where the offending legislation is found
in primary legislation, viz.,
acts passed by parliament, the court
issues a "declaration of incompatibility,"
which permits the government opportunity
to ameliorate. If this does not occur,
the claimant then has the right to take
the case to the European Court of Human
Rights, which can compel elimination
of the offending legislation. In cases
where breaches are determined to have
occurred under secondary legislation,
i.e. ministerial regulations
made outside of parliament, the courts
have the authority to set the legislation
aside, so long as nothing in primary
legislation prevents this. Courts and
tribunals also are required to take
into account Strasbourg court and commission
case law.
The Convention, adopted in 1950,
was ratified by the UK in 1951. Among
other things, the Convention guarantees
the following rights and freedoms: right
to life (Article 2); freedom from torture
and inhumane or degrading treatment
or punishment (Article 3); freedom from
slavery and forced or compulsory labor
(Article 4); right to liberty and security
of person (subject to a limited derogation
for section 3) (Article 5); right to
a fair and public trial within a reasonable
time (Article 6); freedom from retrospective
criminal law and no punishment without
law (Article 7); right to respect for
private and family life, home and correspondence
(Article 8); freedom of thought, conscience
and religion (Article 9); freedom of
expression (Article 10); freedom of
assembly and association (Article 11);
right to marry and found a family (Article
10); prohibition of discrimination in
the enjoyment of Convention rights (Article
14); right to peaceful enjoyment of
possessions and protection of property
(Article I of Protocol 1); right to
education (subject to a UK reservation)
(Article 2 of Protocol 1); right to
free elections (Article 3 of Protocol
1); and right not to be subjected to
the death penalty in times of peace
(Articles 1 and 2 of Protocol 6).
About the Author: Bonnie H. Weinstein, based in Washington,
DC and New York, specializes in public
and private international law. Among
other activities, she currently serves
as a Vice-Chair of the International
Investment Privatization and Development
Committee of the International Section
of the American Bar Association.
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