Human Rights
Structure of the Human Rights Act
Using the Human Rights Act
Impact of Human Rights Act
The Human Rights Act came into force on 2 October
2000. The Act will impact in a number of ways on all aspects of law. It will be
directly enforceable against public authorities. It will also be directly
enforceable against persons whose functions are of a public nature where the act
complained of is of a public nature. Whilst it will not be possible to enforce
directly against private persons, its provisions will be relevant in guiding
courts and tribunals in approaching existing common law and statutory rights.
The main areas are:
Article 6
This provides that everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal. This is likely to have
considerable impact on both civil and criminal courts. In addition to 'normal'
rights of appeal, a breach of the Human Rights Act will give individuals the
right to appeal against any decision of the state or public authority where such
rights do not exist before.
Article 8
This creates a right to respect of private and family life, home and
correspondence. This will apply to actions by the state and public authorities,
but may also apply to rights in employment. It is, for example, likely to be
relevant in any situations where the actions of an employer are caused by an
objection to a given feature of an individual's family or private life, such as
their sexual identity, their moral or physical integrity, sexual activities and
personal relations. It would also apply to taping of telephone calls whilst at
work, interception of personal mail etc.
In family law it will apply to removal by local authorities of children without
use of adequate procedure, adequate involvement of parents and children in any
decision taken in relation to their welfare, in the rights of unmarried father,
and so on.
This is likely to be part of the Act that has the greatest impact, and its full
effects are not yet predictable.
Article 9
Provides a right to freedom of thought, conscience and religion. It might be
that the effects of Article 9 would create a new right not to be discriminated
against on the grounds of religion.
Article 10
Provides for freedom of expression. If an employee is dismissed for an
expression of his or her opinion, an employer might then have to show that
dismissal was reasonably necessary in order to justify it.
Article 11
Provides a right to freedom of peaceful assembly and freedom of association with
others.
Article 12
This provides for the right to marry and found a family. This might affect the
growing tendency of states to recognise the rights of unmarried persons, e.g.
homosexuals and transsexuals, to 'register' their relationships.
Most importantly, once the Act is in force all legislation must be read and
given in a way that is compatible with it.
R v A 17/05/2001 UKHL 25 Section
41(3)(b) of the 1999 Youth Justice and Criminal Evidence Act had been
impugned as giving rise to an Alice in Wonderland situation, where
cross-examination was permissible in relation to recent prior consensual
activity with the defendant on the issue of the defendant's state of mind
(belief in consent) but not in relation to the complainant's state of mind
(consent). Whether an accused convicted after such a direction could claim to
have been been unfairly tried, or whether the section should be the subject of a
"declaration of incompatibility" were considered by the House.
Appeal dismissed by H of L for a variety of reasons. Section 41 not incompatible
with Art 6, but application for leave should be remitted to trial judge
in light of the (far from unanimous) decision of the House.
More information on Human Rights in the UK in ACL
More information about the Human Rights Act 1998 on-line
The Lord Chancellor's Department: