The UK Human Rights Act
May 18, 2001
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.
For Further Reading:
For the full text of UK guidelines on the enforcement of the Act, see Human Rights Act 1998 Guidance for Departments Home Page at <http://www.homeoffice.gov.uk/hract/guidance.htm#convention>.