UK: What difference will the Human Rights Act make? (feature)
01 March 2000
In October of this year the Human Rights Act, passed two years ago, finally comes into force in England and Wales. How will it work, and what impact will it have?
Successive governments' failure to incorporate the European Convention of Human Rights into domestic law meant that UK judges were not obliged - or even, in many cases, permitted - to look at cases from a human rights perspective. Complainants were forced to take cases to the ECHR institutions in Strasbourg, which is expensive and very, very slow. A steady stream of cases has been taken there for the past 30 years, with the number of embarrassingly high-profile adverse rulings increasing year on year. The stated aim of the Human Rights Act is to make the long journey to Strasbourg unnecessary by giving all UK courts jurisdiction to rule on and provide remedies for violations of the rights protected by the Convention, 50 years after it was signed.
The mechanics
The Act incorporates provisions of the Convention into British law. Schedule 1 of the Act sets out the incorporated rights, contained in Articles 2-12 of the Convention and the first and sixth Protocols. These guarantee to protect the right to life, freedom from torture, from inhuman and degrading treatment and from slavery and forced labour. They guarantee liberty of person, fair trial procedures, and respect for family and private life, home and correspondence. Freedom of thought, conscience and religion, expression, assembly and association are protected, as is the right to marry and to found a family, and the principle of non-discrimination in the enjoyment of the Convention rights. Protocol 1 guarantees rights to education, to property, to free elections, while Protocol 6 abolishes the death penalty.
The cornerstone of the Act is section 6, which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right unless it is required to do so by an Act of parliament. A public authority is defined as including private bodies carrying out public (ie, state) functions, such as Group 4 when it manages a prison, or British Airways or Eurostar when they perform immigration control functions. The definition also includes all the courts, thereby imposing on them a primary duty to give effect to the protected rights at all times.
By section 7, victims of acts (or omissions) by public bodies which infringe a Convention right will be able to bring or defend proceedings in the appropriate court relying on the right. Thus a prisoner or detainee claiming his detention breaches the right to liberty in Article 5 will have a habeas corpus action in the High Court, and a potential damages claim on release. A complaint that allocation to a particular prison hundreds of miles from family members is a disproportionate interference with respect for family life would be heard in the High Court. An allegation of inhuman or degrading treatment on arrest or during incarceration, which might include racial abuse, inappropriate handcuffing or other restraint, or a denial of sanitary facilities in holding cells, will be justiciable in the county court like an ordinary civil action for assault. The criminal courts will hear arguments on the scope of directions to the jury on the right to silence (Article 6:2) and for the exclusion of evidence obtained by an illegal search of a home or an illegal phone tap (Articles 6:1 and 8). In the immigration context, a new "human rights" appeal will allow appellants to claim that a refusal of leave to enter, or a proposed expulsion, will violate rights to family life, or will expose them to human rights abuses in the country to which it is proposed to send them. In the family courts deprivation of custody of or contact with children by local authorities in care proceedings, for example, will give rise to many cases based on Article 8. Discrimination (on grounds of sex, race, colour, language, religion, political or other opin