Celebrating Twenty Years of the Human Rights Act 1998

Written by Candice Maharaj

Friday 9 November 2018 marked the 20th anniversary of the Human Rights Act 1998 (HRA). The Act incorporates the content of the European Convention on Human Rights (ECHR) into UK law. Additionally, the Act makes it unlawful for public bodies to act in a way that is incompatible with the ECHR; it requires courts to take account of decisions or statements made by the European Court of Human Rights and to interpret domestic legislation in such a way that makes it compatible with the ECHR (this is known as ‘reading down’). If this is not possible, courts must issue a declaration of incompatibility. UK citizens can petition the European Court of Human Rights when the HRA does not provide a remedy or if UK legislation violates the ECHR, but only if all domestic remedies have been exhausted (essentially, if the matter has been dealt with by the Supreme Court).

The ECHR was drafted by the Council of Europe after World War II as a response to the serious human rights violations that occurred during that time. Respect for human rights was considered important for a democratic society. The HRA protects the following rights (as taken from the ECHR):

Article 2: Right to life
Article 3: Prohibition of torture
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Right to marry
Article 14: Prohibition of discrimination

The HRA has faced considerable criticism. Some believe that it grants too many rights, waters down justice, and allows for frivolous litigation. It has also been said that it gives the judiciary too much power to go against the will of Parliament. Supporters of the Act stress that protecting basic human rights like the rights to life, liberty and privacy is more – not less – justice. As for the allegation that it can lead to frivolous claims – a truly frivolous case would have a hard time making it to the Supreme Court, much less the European Court of Human Rights. It is not impossible, but it is unlikely enough that it does not present a real problem. It is also useful to allow courts to read down legislation that might be outdated or worded badly. Whether the courts are too free-handed with this power does not take away from the value of human rights themselves.

Over the past twenty years, the HRA has demonstrated its usefulness. In the case, DSD and NBV and The Commissioner of Police for the Metropolis [2014] EWHC 436 (QB), two victims of John Worboys (the ‘black cab rapist’) alleged that the police violated their Article 3 rights (which also encompass degrading treatment) by refusing to believe them and investigate properly when they reported their rape. They were successful, and this has changed how the police deal with all subsequent allegations of rape. In Peck v UK [2003] 36 EHRR 41, the local authority disclosed CCTV footage to the media of Peck’s attempted suicide, with no attempt to mask his identity. This was found to be a violation of his Article 8 rights. The examples of successful human rights litigation are too numerous to go into here, but they make it abundantly clear that the HRA does indeed protect people from human rights violations.

One of the biggest challenges that the HRA will face in the future is that of surveillance technology. Article 8 – the right to private and family life – provides essential protection against increasingly intrusive surveillance practices of the government and large tech companies such as Facebook and Google. In today’s world, these issues affect everyone. Article 8 could also protect people from other EU countries living in the UK from potentially aggressive immigration policies. Another legal concern is whether UK citizens will be able to rely on the European Court of Human Rights in the future. The ECHR exists in a completely separate legal system from the EU but there have been calls for the UK to bow out of the Convention in favour of a ‘British Bill of Rights’. This would not only prevent UK citizens from accessing the Court, but would allow Parliament to deviate from and potentially restrict ECHR provisions.

On the 20th anniversary of the Human Rights Act, it is important to reflect on its value and the nature of human rights themselves. The point of human rights is to allow everyone to live safer and more dignified lives. It does place limitations on governments – but is this a silly inconvenience? Or is it a welcome provider of protection against potential abuses of power? Whichever side of the debate one might fall on, it is undeniable that human rights protect everyone, and when your rights are violated, the Human Rights Act gives you the right and the ability to do something about it.

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