September 2000

83.1 The European Convention on Human Rights

The Human Rights Act 1998 (the Act) has been described as one of the most significant pieces of constitutional legislation enacted in the United Kingdom. Its purpose is to incorporate the provisions of the European Convention on Human Rights (the Convention) into UK law. The Convention, which defines certain human rights and freedoms, is a treaty of the Council of Europe which was adopted in 1950 and ratified by the UK in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the United Nations Declaration on Human Rights, adopted in December 1948. The general purpose of the Convention is to protect human rights and fundamental freedoms and the rights defined in the Convention are given a broad interpretation rather than a strict, literal one, so as to ensure that they are practical and effective within a changing society.

Since the Convention was adopted a number of Protocols have defined further protected rights. One of the most important - providing for the protection of rights in property - is the First Protocol which was added in 1952. A number of the protected rights are linked to changing social concepts, such as "private" and "family life". The way in which the protected rights are interpreted in relation to situations in which they are invoked necessarily changes over time so as to ensure that they are given practical effect within a changing society.

83.2 Provisions of the Act

Previously, in order to enforce rights under the Convention, after all domestic remedies had been exhausted, a case had to be taken to the European Court of Human Rights in Strasbourg after all domestic remedies had been exhausted. Under the new Act, those rights will be enforceable in the UK courts, though the road to Strasbourg will remain open as a last resort.

The Act:

a) makes it unlawful for a public authority to act incompatibly with Convention rights;

b) requires all legislation, primary and subordinate, to be interpreted and given effect as far as possible compatibly with Convention rights. Where it is not possible to do so, a court may:

i) quash or disapply subordinate legislation if the power in primary legislation under which it is made would have permitted compatible legislation to be made;

ii) if it is a higher court, make a "declaration of incompatibility" for primary legislation or subordinate legislation which is, because of the power it is made under, inevitably incompatible. This triggers a new power in section 10 (3) that allows a Minister to make a remedial order to amend the legislation to bring it into line with Convention rights;

c) requires UK courts and tribunals to take account of Strasbourg case law when determining questions involving Convention rights;

d) requires that, in future, a Minister in charge of any Bill must make a statement that the Bill is compatible with Convention rights or state that he is unable to do so.

A person who claims that a public authority has acted in a way which is incompatible with a Convention right may:

a) bring proceedings against the authority under the Act in the appropriate court or tribunal; or

b) rely on the Convention right or rights concerned in any legal proceedings.

Notes: [s6] [s3] [s4] [s2] [s19] [s7]


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