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•     Part II of the Guide
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•     Impact of Human Rights Act (HRA) 1998

First Note

This is only a introductory guide and is not comprehensive.

If you would like to join with other lawyers in promoting human rights, try Lawyers for Liberty. This is a UK organisation.

For the sake of clarity the European Court of Human Rights is abbreviated as ECtHR in this section.

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Resources

These are the basic resources:-.

Cases - decisions of the European Court and Commission which have developed the jurisprudence on the ECHR will be found in the following publications (recent ones are also on the internet - see below):-

Internet

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Introduction

Ever since the UK Government proposed incorporation of the ECHR, there has been debate as to how much it is likely to be used. Some innovative litigation is likely to be seen, although some of it may take some time to come through. Arguably, there are some particular reasons why HRA/ECHR points might not be raised on some occasions when they could or should have been raised:-

• Ignorance - not just litigants, but lawyers, including judges, have little or no experience or knowledge of human rights issues and opportunities to raise points are likely to go begging, particularly in the early days;
• Existing rights - it is strongly submitted that, wherever possible, judges will rely on rights which already exist in English laws the basis for their decisions rather than ECHR points because it is safer and they will feel more confident in doing so.

There are also some particular reasons why arguably HRA/ECHR points will be raised when perhaps they should not:-

• Ignorance - it is likely that human rights points will be raised when they should not have been;
• Desperation - some people will use human rights arguments when they can't think of anything else.

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The Human Rights Act 1998

The Human Rights Act came into force on 2^nd October 2000 except that it may be used as a defence to proceedings brought by a public authority in respect of an act which occurred before that date - s.22(4).

"So far as it is possible to do so" legislation must be read and given effect in a way which is compatible with Convention rights - s.3(1).

Courts must take into account decisions of the European Court of Human Rights ("ECtHR"), the European Commission (the European Commission of Human Rights was abolished in November 1998: this Commission is not to be confused with the EU European Commission) and the Committee of Ministers of the Council of Europe - s.2. There is no doctrine of precedent, i.e. these decisions are not binding.

It is unlawful for a public authority to act in a way which is incompatible with a Convention right - s.6(1).  A public authority means bodies whose functions are of a public nature which means the following are covered:-

• everything done by a public authority;
• courts and tribunals; and
• public acts by anyone certain of whose functions are of a public nature even if they are nominally private bodies.

This excludes cases where both parties are private, e.g. private sector landlord and tenant disputes.  However, the courts must comply with the ECHR, including by interpreting statutes in accordance with s.3(1) and in considering the common law.

Anyone, if they are a "victim" (as defined in the decisions of the ECtHR), may:-

• bring proceedings against a public authority on ECHR grounds alone (s.7(1)(a)) within one year of the act complained of or such longer period as the court/tribunal considers equitable having regard to all the circumstances - s.7(5);
• rely on any Convention rights in any legal proceedings - s.7(1)(b).

The courts have the same remedies for ECHR cases as they would for any other cases - s.8.  However, damages or compensation are limited by the principles laid down by ECtHR - s.8(4). Compensation awarded by the ECtHR is rarely as much as would be likely to be awarded as damages if the principles of English law on damages were applied.

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The European Convention on Human Rights

The ECHR has three sections:-

I.   Rights and freedoms (see below)
II.  Establishes ECtHR and provides for its operation
III. Miscellaneous, including territorial application, reservations, signature and ratification.

Art.1 (obligation of State parties to secure ECHR rights) and Art.13 (right to an effective remedy for breach of ECHR) were not incorporated by HRA.  However, Lord Irvine, the Lord Chancellor, stated in Parliament that this was because HRA fulfilled them and that courts would still have to take into account ECtHR decisions on Art.13.

The rights incorporated are:-

• Art.2 Right to life
• Art.3 Prohibition of torture and inhuman or degrading treatment
• Art.4 Prohibition of slavery and forced labour
• Art.5 Right to liberty and security
• Art.6 Right to a fair trial
• Art.7 No punishment without law - no retrospective penalties
• Art.8 Right to respect for private and family life, home and correspondence
• Art.9 Freedom of thought, conscience and religion
• Art.10 Freedom of expression
• Art.11 Freedom of assembly and association
• Art.12 Right to marry
• Art.14 Prohibition of discrimination in the enjoyment of the above rights
• Protocol No.1
  • Art.1 Protection of property
  • Art.2 Right to education
  • Art.3 Right to free elections
  • Protocol No.6
• Art.1 Abolition of the death penalty

The rights must be interpreted in accordance with the following principles:-

• Art.31 of the Vienna Convention on the Law of Treaties states that a "treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purpose."
• The objects and purpose of the ECHR, including:
  - the maintenance and further realisation of human rights;
  - the maintenance and promotion of the ideas and values of a democratic society, such as pluralism, tolerance and broad-mindedness;
  - the rule of law.
• Rights must be practical and effective, not theoretical and illusory.
• The ECHR is a "living instrument".
• Legal terms are autonomous, i.e. they don't necessarily mean the same thing as in domestic law.
• They must not conflict with other human rights instruments, such as the International Covenant on Civil and Political Rights.

The above rights are put into one of three categories:-

• Absolute rights - 2, 3, 4(1) and 7
• Derogable rights - 4(2), 4(3), 5 and 6
• Qualified rights - 8, 9, 10 and 11

UK has only one derogation, for pre-trial detention under prevention of terrorism legislation (HRA Sch.3 Pt I).

Qualified rights may be subject to a limitation or restriction but only if:-

• that limitation or restriction is "prescribed by law";
• it pursues one of the aims specifically listed in Arts.8(2), 9(2), 10(2) or 11(2);
• it is "necessary in a democratic society"; and
• it is not discriminatory under Art.14.

The ECHR is mostly about limiting state powers, i.e. setting out negative duties as to what the state cannot do, but it also imposes positive duties on state authorities to:-

• put in place a legal framework which provides effective protection for Convention rights;
• prevent breaches of the ECHR;
• provide information and advice relevant to breaches of the ECHR;
• respond to breaches;
• provide resources to individuals to prevent breaches.

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