HUMAN RIGHTS ACT 1998

Human Rights Act 1998

Human Rights Act 1998

Introduction and Background

The aftermath of the Second World War brought demands for an international forum to safeguard basic human rights. Influenced by the Universal Declaration of Human Rights adopted by the UN General Assembly in 1948, Council of Europe states created their own Convention for the Protection of Human Rights and Fundamental Freedoms in 1950 (the European convention on human rights). The UK was active in ratifying the treaty in 1950. Cases were to be presided over by the European court of human rights in Strasbourg. Domestic courts in the UK could not hear cases because, under the UK's dualist system of law, the convention remained an international treaty with no domestic effect (Wadham, Mountfield, & Gallagher, 2009).

In 1997 the Labour government, honouring a manifesto pledge announced their intention to incorporate the convention into domestic law. It published a white paper, Rights Brought Home: The Human Rights Bill, which would: "mean that the British people will be able to argue for their rights in the British courts - without … inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the United Kingdom and will thus be far more subtly suited and powerfully woven into our law."

Opponents expressed fears that the bill would shift authority from parliament to the judiciary. William Hague, leader of the Conservatives, stated that it would replace "the rule of law with the rule of lawyers". The bill sought to preserve parliamentary sovereignty by allowing the courts to interpret laws in a manner compatible with the convention "so far as it is possible to do so" but ultimately requiring the courts to make a "declaration of incompatibility" if such an interpretation is not possible. This mechanism then gives parliament the opportunity to amend any incompatible law (Ewing, 1999, 79-99).

The press argued that the right to a private and family life would become a "back door" for a privacy law that could be used to curtail press freedom. The government responded by announcing an amendment designed to reassure critics. The government also tabled amendments to allay church leaders' fears that the bill could be used to change church policies on homosexuality, education and the ordination of woman priests. Section 13 affords "particular regard" to the right to freedom of thought, conscience and religion.

'Despite the Human Rights Act 1998, the courts have failed appropriately to limit the scope for the exercise of breach of the peace powers.'

The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights. To reaffirm the commitment of the UK to human rights and civil liberties, it is now possible under the said Act to file a claim for violation of the ECHR without going to the European Court of ...