UK: Human Rights Bill (feature)
01 November 1997
On 3 November, the Human Rights Bill had its second reading in the House of Lords (where it was introduced). The Bill will incorporate the European Convention on Human Rights into UK law, by making it unlawful for a public authority to act in a way incompatible with rights under the Convention. Victims of violations will be able to bring proceedings against the authority concerned under the Act, or rely on the Convention in their defence. Thus a person facing a criminal charge in which evidence was obtained by illegal surveillance would be able to rely on Article 8 (right to respect for privacy of home and correspondence) to argue that the evidence should not be admitted. An immigrant facing deportation would be able to argue that Article 8 (right to respect for family life) or Article 3 (right not to be subjected to torture or inhuman or degrading treatment) prevented or militated against his or her deportation. And a parent denied contact with his or her child would be able to argue that Article 8 rights were violated.
The Bill's Schedules are set out the Convention and the Protocols signed by the UK. These include the right to life (Art 2), to freedom from inhuman or degrading treatment (Art 3) and from forced labour (Art 4), the right to freedom (Art 5) and access to justice (Art 6) and the principle of non-retrospectivity of penalties (Art 7); the right to respect for family and private life (Art 8); freedom of conscience (Art 9), expression (Art 10) and assembly (Art 11), rights to marry and found a family (Art 12), and non-discrimination in their exercise (Art 14). Protocol 1 rights include rights to property, education and free elections. The right to an effective remedy for the exercise of the rights (Art 13) has been omitted; the government claims the Bill itself fulfils Art 13.
The rights enumerated do not include the ECHR's Protocol 4 (which grants rights not to be imprisoned for debt; rights to enter and move freely within the home state and the right not to be expelled from it, and the right of aliens not to be collectively expelled. The Bill's accompanying Command Paper, Rights Brought Home, explains that "existing laws on different categories of British nationals must be maintained", which prevents ratification of Protocol 4. Protocol 6, which prohibits the use of the death penalty, is also unsigned and omitted, because the government wants the option to reintroduce the death penalty for murder. It says this is a matter not of constitutional principle but of individual conscience. The final missing protocol, Protocol 7, provides that aliens are not to be expelled without a legal decision and review, that criminal convictions carry rights of appeal or review against conviction and sentence; that victims of miscarriages of justice are to be compensated; there should be no double jeopardy in the criminal law, and spouses should be treated equally. The government says this protocol will be incorporated once legislation guaranteeing spouses' equality in matrimonial property is in place.
The Bill keeps in place the UK's 1988 derogation from Art 5 which is required to keep the power of detention without charge for up to 5 days under the Prevention of Terrorism legislation. It provides that this and any other derogations can be maintained for five years, and can be renewed by resolutions of both Houses of Parliament. There is also a reservation on the right to religious education in accordance with parental conviction, limiting the right to what is compatible with the provision of efficient instruction at reasonable public expense, which is subject to ministerial review at five-yearly intervals.
The Bill will not allow the courts to strike down legislation incompatible with the rights protected, but the judges of the higher courts will be able to make a declaration of incompatibility, and ministers will then be able to amend the offending law by way of remedial order. Existing legislation will be in