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Human Rights Act - impact

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Impact across the board.

The Human Rights Act 1998 commenced October 2000.

 

Many members of the business and insurance communities still tend to view the Act as largely confined to the spheres of criminal law, civil liberties and the like. However, the Act has a pervasive and subtle effect across the whole range of English law.

 

It also impacts on the role of the judiciary and, in particular, the relationship between the media and the judiciary.

 

Incorporated ECHR

The Act incorporates the European Convention on Human Rights (ECHR) into UK law and requires all domestic legislation and law to be read and given effect to in a way that is compatible with the ECHR.

 

Powers of the High Court

If it is not compatible, the courts will be able to make a declaration and refer the matter back to Government to consider making a remedial order.

 

 

 

Which rights are incorporated?

  • Article 2 - right to life

  • Article 3 - protection from inhuman treatment

  • Article 4 - freedom from forced labour

  • Article 5 - right to liberty

  • Article 6 - right to fair trial

  • Article 8 - respect for privacy

  • Articles 9 & 10 - freedom of thought and expression

  • Article 11 - freedom of peaceful assembly

  • Article 1, Protocol 1 - right to peaceful enjoyment of possessions

  • Article 2, Protocol 1 - right to education

All statutes must be interpreted in accordance with the rights conferred by the Act

In effect, the Act introduced a new rule of statutory interpretation.

Lawyers have to take account of the jurisprudence of the European Court of Human Rights in Strasbourg.

This jurisprudence imports new concepts into English law such as the margin of appreciation and the concepts of proportionality and manifest unreasonableness. At the present time, most English lawyers are not familiar with these concepts.

 

Key words (worth repeating)

  • Proportionality

  • Manifest unreasonableness

  • Margin of appreciation

Other jurisdictions persuasive

Decisions of the Judicial Committee of the Privy Council and other common law jurisdictions, which construe similar language and concepts to those in the Act, are strongly persuasive authority.

English lawyers need to have regard to a far wider range of case law than that before the Act.

 

Moral statements

The broad moral statements of the convention rights are new to most English lawyers. They are not used to construing terms such as a "right to privacy" or a "right to family life".

English lawyers, who have spent more time interpreting contracts and conveyances than articles in a constitution, have had to learn how to interpret these rights and apply them to specific problems.

 

Issues for "Public Authorities"

The Act makes it unlawful for any "public authority" to act in a way which is incompatible with a convention right.

It is clear that "public authorities" include courts and tribunals, government bodies, the Takeover Panel, the Stock Exchange and Lloyd's of London.

There is also provision for hybrid bodies that perform both public and private functions and they are required to comply absolutely with the rights in the Act in the performance of the public function. These type of bodies include the privatised utilities, Railway authorities and private schools.

 

Rule of Thumb

 

Those subject to judicial review, caught

All bodies subject to judicial review proceedings and bodies, which carry out some function, which could be defined as public, are caught by the Act.

Hybrid bodies such as private schools will exercise some functions that are defined as public under the Act.

 

The right to a fair trial (article 6)

Public authorities include many public, private and semi-private regulators such as Lloyd's of London, the disciplinary functions of the legal and accountancy professions, city regulation and a great many social and sporting organisations.

These bodies carry out thousands of disciplinary proceedings every year and all of them will be required to ensure the right to a fair and public hearing within a reasonable time.

 

Freedom of expression (article 10)

The media continue to make use of this Article not least because the Act also introduces a right to privacy, which is increasingly used to challenge it.

One of the driving forces behind the swift passage of the Human Rights Bill through Parliament was the concern over the absence of a privacy law in the UK particularly around the figure of the Princess of Wales and came to a head at the time of her death in August 1997.

The Courts may, over time, develop such a law from the existing laws of nuisance and trespass.  This can be seen to be happening with the use of the tort of breach confidentiality.

 

A change in culture - The Judiciary and the media

Judges at all levels have found themselves subject to greater media scrutiny.

When applying the Act they are required to make moral and ethical decisions of great emotive value. For example, when hearing cases that will determine which person will be allocated crucial health care resources by the NHS, which could determine whether a person would live or die.

 

Conclusion

The impact of the Act has not been as enormous as expected.

 

It represents a constitutional shift to a rights based system of law.

 

In many areas the courts have found that existing practices are already 'human rights' compliant and have been reluctant to make significant changes.

 

Even more information here

 http://www.humanrights.gov.uk/studyguide/index.htm

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