Help with the Human Rights Act 1998

The Human Rights Act came into force on 2nd October 2000 and incorporates into UK law certain rights and freedoms set out in the European Convention on Human Rights such as:

*Right to Life (article 2)
*Protection from torture and inhuman or degrading treatment or punishment (article 3)
*Protection from slavery and forced or compulsory labour (article 4)
*The right to liberty and security of person (article 5)
*The right to a fair trial (article 6)
*Protection from retrospective criminal offences (article 7)
*The protection of private and family life ()
*Freedom of thought, conscience and religion (article 9)
*Freedom of expression (article 10)
*Freedom of association and assembly (article 11)
*The right to marry and found a family (article 12)
* Freedom from discrimination (article 14)
*The right to property (article 1 of the first protocol)
*The right to education (article 2 of the first protocol)
*The right to free and fair elections (article 3 of the first protocol)
*The abolition of the death penalty in peacetime (articles 1 and 2 of the sixth protocol)
*Right to effective remedy (article 13);
Reservations (article 15); Restrictions on political activity of aliens (article 16);
Prohibition of abuse of rights(article 17);
Limitation on use of rights (article 18).

*Convention Rights
The rights listed above are known as Convention rights. They will therefore have an impact on areas such as criminal law, family law, housing law, employment law and education law. By Article 1 of the Convention, countries who have signed up to the Convention must secure the above rights for everyone in their jurisdiction and individuals must also have an effective remedy to protect those rights in the country's courts without the need to go to the European Court of Human Rights. The role of the European Court of Human Rights will be to determine whether the domestic courts have been true to the Convention. All national courts and tribunals must take into account the case law of the European Court of Human Rights.

The Human Rights Act will cover England, Wales, Scotland and Northern Ireland.

The Act does not create any new criminal offences, but does apply to the criminal courts.

The Act does not take away or restrict any existing human rights recognised in a country.

The Act binds public authorities, (bodies undertaking functions of a public nature), for example, government departments, local authorities, courts, bodies running nursing and residential homes, schools etc. Those public authorities must not breach an individual's rights. It is unclear whether the Act is designed to apply in claims brought by one individual against another individual. However, it is likely that statutory interpretation may extend the rights protected by the Human Rights act across the board.

In the case of proceedings against a public authority there is a limitation period of 1 year from the date of the act complained of. There is a one-year time limit to bring an action under the HRA unless there are shorter time limits that also apply to the action - for example three months for Judicial Review - in which case the shorter time limit will apply.

Convention rights can be waived, but only if the waiver is unequivocal and does not conflict with an important public interest.

Many of the Articles do allow rights to be breached if for example, it is in accordance with the national laws of the country or is necessary in the interests of national security, public safety or the economic well-being of the country or for the prevention of crime or disorder, or the protection of health or morals, or to protect the freedom and rights of others.

Under the HRA1998 old judge-made law - the common law -will have to change if it does not respect the rights in the European Convention on Human Rights. Secondary legislation - like Statutory Instruments - will not be valid if it does not comply with Convention rights. Even primary legislation - Parliamentary statute - will have to be brought into line with Convention rights "so far as it is possible to do so". If primary legislation cannot be read to comply with the Convention the higher courts can make what is called a "declaration of incompatibility" which will allow the government to amend that law speedily. If the law is not amended it is likely that the case will proceed to the European Court of Human Rights.

How can I use the Act to enforce my human rights?
If you think that a public authority has breached your Convention rights, you can:
•(a) take the authority to court for breaching your rights;
•(b) rely on the Convention rights in the course of any other proceedings involving a public authority, eg judicial review, criminal trial.

If you take the direct route as in (a), you have to bring proceedings within a year of the act complained of. But the court can allow you to bring proceedings after a longer period if it thinks this is fair in all the circumstances. This is not necessarily straightforward and you should consider seeking advice from a solicitor or local advice bureau.

What does some of the jargon in the Human Rights Act and the ECHR mean?

Absolute rights – these rights permit no derogation and once they are established, there can be no further limitation to that right
Rights with prescribed limitations – these rights permit derogation under limited circumstances
Qualified rights – these rights are defined in two stages – the first provides the right and the second defines the permissible qualifications to that right
Living instrument – the ECHR needs to be interpreted in light of present day circumstances
Proportionality – requires doing no more than is necessary in order to achieve a result which is itself lawful and reasonable. In other words, there must be a reasonable relationship between the means used and the end result
Equality of arms – neither party in either civil or criminal trials should be procedurally disadvantaged
Declaration of incompatibility – the High Court (and some other courts) can make a declaration where it is satisfied that a provision of primary or secondary legislation cannot be interpreted compatibly with an ECHR right. However, the declaration does not directly affect the continuing operation of that provision.

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