The protection of freedom, autonomy and dignity of the individual is a key consideration of international community. Therefore, the proclamation of human rights is essential for the protection and promotion of human beings.1
Human rights are those fundamental freedoms and entitlements that belong to all individuals regardless nationality, gender, religion or colour. These rights play a key role in maintaining a fair and civilised society, as nobody is born with more rights than anybody else.2
In particular, the UK possesses a long tradition in the development of human rights since the Magna Carta was issued in 1215, which marked the beginning of the limitation of absolute and arbitrary power of the sovereign.3 This commendable task was further developed through the Bill of Rights (1689), the active involvement of the UK in preparing the European Convention on Human Rights (ECHR) and, more recently, the enactment of the Human Rights Act 1998 (HRA).4
This brief will provide, in first place, an overview on the ECHR and its influence in order to discuss the consequences the HRA has had on human rights in the UK since its enactment. In doing this, relevant case law will be used to support the assessment.
The protection of human rights through the HRA
The European context: the ECHR
Technically speaking, the ECHR is an international treaty listing a set of rights which must be respected and guaranteed by the different signatory states within their jurisdictions. 5 This treaty was born in the aftermath of the Second World War with the purpose of protecting individual human rights after the crimes committed during the war.6
Thus, the ECHR allows the right for people to make a complaint outside their states and report that their national government has violated any of the rights or freedoms under its provisions.7
The main feature of the ECHR is the introduction of a mechanism by which countries would be required to implement a judicial review of their legislation. However, the profound consequences the ECHR have on contracting parties’ domestic legal systems was indeed difficult to measure when the ECHR came into force. Particularly, the UK, with a very long tradition in the protection of human rights, was not aware of the many changes its legal system was going to go through in the coming years.8 This situation will be analysed in the next section.
Main features of the HRA
The HRA received Royal Assent on 9 November 1998, although it was not brought fully into force until 2 October 2000.9 The main goal of the HRA is to ‘give further effect’ in UK law to the fundamental rights and freedoms listed in the ECHR.10
Consequently, while before the HRA individuals needed to complain directly to the Strasbourg court and only if previously all domestic remedies had been exhausted, they are now able to go directly to UK courts.11 It should be taken into consideration that before the HRA was passed, individuals had to spend five years and £30,000 on average to claim their human rights in Strasbourg.12
The rights contained in the HRA not only affect vital matters of life and death, such as freedom from torture and killing, but also matters which are present in people’s daily life (e.g. privacy, freedom of expression).13 Given the wide range of fundamental rights covered, it is not surprising, therefore, that the HRA is considered one of the most significant pieces of legislation ever passed in the UK.14
This key piece of legislation has three goals:15
- Bringing rights home, by ensuring that all individuals in the UK have protected their human rights in UK courts, without the need to go to Strasbourg in first place;
- Introducing strong constitutional mechanisms in order to ensure that all powers (i.e. Parliament, Executive and Judiciary) respect human rights in their work with the aim of enhancing the democratic process;
- Increasing the awareness of human rights throughout society.
In achieving these aims, it was critical to preserve the sovereignty of Parliament. The UK did not incorporate into domestic law the ECHR just after the ratification in 1953 mainly because it was believed that parliamentary sovereignty, the supreme constitutional dogma in the UK, could be compromised.16 Unlike other countries whose written constitutions provide for legislation to be subject to judicial review with the purpose of respecting human rights, the UK’s constitutional traditions did not allow such judicial review, as it would contravene parliamentary sovereignty.17
Judicial review of primary legislation
The HRA undoubtedly changes the historical separation of powers in the UK, as it requires courts to construe legislation ‘so far as it is possible to do so’ in accordance with the rights enshrined within the ECHR.18
This ‘rule of construction’ also applies to subordinate legislation whenever enacted (i.e. covering existing and future legislation). Should the courts face a provision which cannot be construed in a compliant way, they are required to issue a declaration of incompatibility.19 However, there is no legal obligation to remove the incompatibility and therefore, the declaration of incompatibility mandates a political –but not legal- obligation to correct the incompatibility.20
The judicial review of primary legislation does provide a win-win situation: while parliament sovereignty is not compromised by the judiciary, society as a whole benefits from a procedure which allows the identification of legislation that may infringe human rights. This procedure, called ‘remedial power’, has successfully identified and removed incompatibilities already in some primary pieces of legislation, such as the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 or the Sexual Offences Act 2003.21
This interpretation of primary legislation applies to the same degree with legislation applying between private parties as it does in legislation which applies between public authorities and individuals.22 For example, courts have applied the rule of construction to protect the housing rights of a homosexual couple where the provision did not include explicitly that circumstance.23
Principle of proportionality
Along with the preservation of Parliament sovereignty, the other big reason why the UK did not transpose the EHCR in 1953 is because it was considered that domestic law sufficiently protected the rights of the people.24
The principle of irrationality in force at that time resulted from Wednesbury25 simply required judges and public authorities to take into account the ECHR when interpreting ambiguous statues, presuming that Parliament wished to legislate in accordance with the ECHR.26 As defined by the domestic courts, the threshold of irrationality is high, and moreover, the applicant had to demonstrate the irrationality of the decision. Therefore, this restrictive model made just the application very difficult to succeed.27
The White Paper preceding the HRA revealed that the country could no longer affirm that its legal system was adequate to protect human rights, given the high official violation rate of human rights the UK had accumulated in the last years.28 Consequently, in order to both provide a stronger defence of the human rights in the UK and comply with the standards determined by the ECHR, the domestic courts explicitly adopted the principle of proportionality shortly after the HRA was enacted through the Daly29 case.
Unlike irrationality, this principle places the burden of proof on the decision-maker, which has to justify the reasons behind any limitation of individual human rights. Furthermore, it allows for a more intense standard of judicial review, which does take into consideration individual human rights by weighting such rights and competing public interests.30
Perhaps the best case showing the difference between these two principles is Smith and Grady,31 which took place before the HRA came into force. They were two soldiers in the British army who were dismissed after an investigation in their private lives demonstrated that they were homosexuals. They claimed a violation of their right to privacy protected under the ECHR and were unsuccessful in the domestic courts, due to the restrictive nature of the principle of irrationality. Not only did the Strasbourg court criticise the action taken by the UK courts, but also some of the domestic judges affirmed that the judicial review did not provide an adequate protection to the applicants.
The HRA requires all public authorities to act in a way which is compatible with the ECHR unless primary legislation requires them to act otherwise.32 As a result, public authorities could be subject to legal proceedings not only for their actions, but also for their omissions.33 Although this seems quite effective and easy to apply, there is one big problem: the HRA does not provide a complete definition of what ‘public authority’ encompasses.
The original intention of Parliament when passing the HRA was to include as public authorities, apart from executive bodies or police forces, also private-sector providers of publicly-funded services. Unfortunately, domestic courts have narrowed the definition of public authority.34
The Court of Appeal in R (Heather) v Leonard Cheshire35 held that most private organisations which are taking part in contracts with public authorities to provide services are not public authorities under the HRA. Furthermore, in L,36 it was determined that a privately-owned care home, when providing care to a resident in accordance with an agreement signed with a public authority, was not performing actions of a public nature.
The aforementioned cases reveal that the HRA does not cover most vulnerable service users (e.g. elder people or individuals with disabilities), since public services provided by the voluntary or private sector in the field of home care services are not within the scope of the HRA.37
This essay has exposed the profound legal and political impact the HRA has had in the UK. The HRA has been able to penetrate in the traditional UK constitutional system by allowing courts to adopt a rights-friendly interpretation of legislation where possible, while preserving the legislative sovereignty of Parliament.
Moreover, the diverse case law used throughout this paper has demonstrated that the application of HRA has changed substantially a lot of aspects in UK law in order to preserve the human rights in the country. The degree of protection deployed by the HRA has demonstrated that if the UK had transposed the ECHR at an earlier stage, individuals would have enjoyed a strong, effective protection without the need of having gone to Strasbourg, saving money and time.
On the other hand, both the judicial review and the principle of proportionality are impacting the way the different primary decision-makers work, as they now must justify that their decisions are objective and not just rational. Consequently, this new system ensures that human rights are not easily restricted while increasing the awareness of human rights in the UK society, two of the aims set out when the HRA was passed. Some authors go beyond and maintains that the state should be seen to comply with court decisions, even if it is not binding as such.38
However, the HRA, although formidable, is not a perfect piece of legislation, as it contains some loopholes that can harm certain group of people and their human rights, as it has been shown when describing the role of public authorities. In order to resolve loopholes of this kind, either Parliament should clarify the laws or the courts apply an adequate test case.
Finally, and taking into consideration the overall, it can be concluded that the HRA has favourably changed the UK law, increasing both the role of the courts in preserving rights and the transparency of the legislation enacted by Parliament. Nevertheless, there is always room for improvement and grant to a greater extent the human rights through the HRA, which must be done through the cooperation of all powers in the UK.
1Rainer Arnold, ‘Reflections on the Universality of Human Rights’ in Rainer Arnold, The Universalism of Human Rights (Springer 2013)
3David Harris et al, International Human Rights Law (2nd edn, OUP 2010) 18-19
4Devran Unlu, ‘Comparative Analysis of the UK and Turkey in Terms of the Question – Can the UK’s Human Rights Law Be a Model for Turkey to Overcome Its Violations Of Article 3 and Article 10 of the European Convention on Human Rights’ (2013) 6 Ankara Bar Review 111
5Louwrens R Kiestra, The Impact of the European Convention on Human Rights on Private International Law (Springer 2014) 28
6James W Hart, ‘The European Human Rights System’ (2010) 102 Law Library Journal 533
7Kevin Boyle, ‘The European Experience – The European Convention on Human Rights’ (2010) 40 VUWLR 167
8Jochen A Frowein, ‘The Transformation of Constitutional Law Through the European Conventions on Human Rights’ (2008) 41 Israel Law Review 489
9Only sections 18, 20, 21(5) and 22 came into force on the passing of the Act
10Preamble of HRA. It should be borne in mind that the HRA has not transposed fully the ECHR, listing only Articles 2-12 and 14 ECHR, Articles 1-3 of Protocol 1 and Articles 1-2 Protocol No 6.
11David Hoffman and John Rowe QC, Human Rights in the UK – An Introduction to the Human Rights Act 1998 (Pearson Education Limited 2006) 1-2
14Hoffman and Rowe QC (n 11) 1-2
15Equality and Human Rights Commission, ‘The case for the Human Rights Act – Part 1 of 3 Responses to the Commission on a Bill of Rights – HRA Plus not Minus’ (2010) Equality Rights and Human Rights Commission 4 click here for the full article accessed 3 March 2015
16John Wadam et al, Blackstone’s Guide to The Human Rights Act 1998 (6th edn, OUP 2011) para 1.17
17Ben Bradshaw, ‘The Human Rights Bill – Progress Through Parliament’ in Lammy Betten, The Human Rights Act 1998 What It Means – The Incorporation of the European Convention of Human Rights into the Legal Order of the United Kingdom (Kluwer Law International 1999) 59
18Section 3.1. HRA
19Ibid, Section 4
20Nicholas Bamforth, ‘Parliamentary sovereignty and the Human Rights Act 1998’ (1998) Public Law 572
21Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Remedial) Order 2011/1158 and Sexual Offences Act 2003 (Remedial) Order 2012/1883
22X v Y  ICR 1634
23Ghaidan v Godin-Mendoza  UKHRR 827
24Merris Amos, Human Rights Law (2nd edn, Hart Publishing 2014) 29
25Associated Provincial Picture Houses Ltd v Wednesbury Corp  LJR 190
26R v Secretary of State for the Home Department Ex p. Brind  2 WLR 588
27Thomas Raine, ‘Judicial Review under The Human Rights Act – A Culture of Justification’ (2013) 1 North East Law Review 81
28Steven Greer, ‘The Legal and Constitutional Impact of the European Convention on Human Rights in the United Kingdom’ in Rainer Arnold, The Universalism of Human Rights (Springer 2013) 199
29R (on the application of Daly) v Secretary of State for the Home Department  2 WLR 1622
30Raine (n 27) 90-91
31Smith and Grady v United Kingdom (1999) 27 EHRR CD42
32Sections 6-7 HRA
34Alice Donald et al, ‘Human Rights in Britain since the Human Rights Act 1998 – A Critical Review’ (2008) Equality and Human Rights Commission 185 click here to read the full PDF accessed 3 March 2015
35R (on the application of Heather) v Leonard Cheshire Foundation  EWCA Civ 366
36L v Birmingham City Council  3 WLR 112
37Donald et al (n 34) 185
38Colm O’Cinneide, ‘The Human Rights Act and the Slow Transformation of the UK’s ‘Political Constitution’ (2011) UCL’s Multidisciplinary Human Rights Institute 11-12 click here for the full article – accessed 3 March 2015