Exploring the Constitution
What was in the 1998 Human Rights Act?
The Human Rights Act 1998 contains the following:-
It incorporates the European Convention in its entirety into UK law which, for the first time, contained a comprehensive set of human rights. The British courts would now apply these in all cases coming before them.
The European Convention distinguish between rights:-
a) Those that are absolute, such as the freedom from torture, which cannot be taken away no matter what the circumstances
b) Those that can be taken away if there are clear reasons, such as the right to privacy if the Government needs information that will lead to a prosecution for terrorism
c) Those that can be take away because of the overriding importance of other rights. For example, there is a right to property but property can be taxed to ensure that everyone has an education.
All new Bills, when they were introduced into Parliament would have to have a statement that they were in conformity with the Human Rights Act.
Earlier legislation might not be in conformity but for judges to declare these Acts illegal would conflict with the constitutional principle of Parliamentary Sovereignty, which holds that the courts cannot challenge decisions of Parliament. The compromise was that the courts could only declare that provisions in another Act were incompatible with the Human Rights Act. It would then be up to Parliament to decide whether to change the incompatible parts of the Act and, in practice, it has done so.
The Human Rights Act would only apply to the decisions of public bodies. However, it required the judges to take account of decisions of the European Court of Human Rights in all cases that came before it and in developing the common law and so its effect could be broader than just the decisions of public bodies.
century political philosophers developed the idea of natural law which held that there were basic rights regardless of what the legal rules in any particular country were. Based on these principles, a set of rights were included in the American and French constitutions. After the experience of the atrocities of authoritarian regimes in the 1930s and during the Second World War, the United Nations drew up a set of rights with the principles that these rights were:-
- Universal. They applied to all human beings without discrimination against any individual or group
- Inalienable. Some such as freedom from slavery could not be taken away under any circumstances and others only under clearly defined circumstances so that, for example, someone who had been found to have committed a crime and had been convicted after a fair legal process could have their liberty taken away
- Indivisible. Government could not choose which rights to have. They were interrelated, for example, the right to free speech and the right to free assembly. The whole set of rights was owed by Governments to their peoples.
The British Constitution did not contain a set of human rights. However:-
- The constitution was based on the principle of the Rule of Law so that Government was not above the law and the public could go to the courts if the law had not been followed.
- The Common Law developed the principle of liberty so that people were free to do what they wanted unless Acts of Parliament specifically prohibited an action.
- Acts of Parliament over time included rights. In 1695, Government licensing of the press was abolished, although press freedom only gradually developed through the Common Law. Equality legislation from the 1960s made discrimination on the grounds of gender, race and sexuality illegal.
None of this was ‘embedded’ so that Parliament could change the law at any time and, for example, the Government limited press freedom during the Second World War. Also judges in the first part of the 20th century were very reluctant to overturn decisions by public bodies and developed the Wednesbury principle that, as long as the decision by the Government or a local authority or any other public agency was not completely irrational, then it was legal.
After the experience of the Nazi occupation of Europe, Western European countries, including Britain, drew up a European Convention of Human Rights in 1950. Other European countries signed as they emerged from authoritarian regimes over the next 40 years, including Russia and Turkey. A European Court of Human Rights was set up in Strasbourg to hear cases from citizens of countries that had signed the Convention and, in 1966, the British Government allowed British citizens to appeal to the ECHR. This was quite separate from the EU. The EU agreed a Charter of Fundamental Rights in 2000 and the Lisbon Treaty in 2009 brought this into force so that the European Court of Justice would apply it to EU issues. Britain secured what it saw as an opt out from this but it is not clear how powerful this is.
From 1966, judgements were made by the European Court of Human Rights which were different to the decisions of the British courts and Parliament then changed legislation to conform to this. For example, homosexual acts were still illegal in Northern Ireland, even though they had been partly decriminalised in Britain, and the ECHR ruled in 1981 that this was a violation of the Charter and the British Government changed the law the next year. Pressure grew to create human rights legislation in Britain and the new Labour Government, in 1998, incorporated the European Convention of Human Rights into UK law.