What is The Human Rights Act?

Background: What is the HRA?

During the Second World War, Europe and the world faced horrors like never before. The systematic massacre of millions at the hands of vicious regimes had exposed the worst parts of human nature. The Charter of the newly formed United Nations committed all member states to promote and respect human rights. This resulted in the adoption of the Universal Declaration on Human Rights in 1948, the most translated document in the world and the first statement of fundamental principles for all humans everywhere, regardless of citizenship.

As the epicentre of genocide and conflict, Europe could not simply be rebuilt as it was before. A new philosophy, new institutions and new laws were essential to forge a new order in which the iterations of enmity and brutality would be finally brought to an end. Central to this vision was establishing an international set of rights that would safeguard individual liberties and the rule of law. This ambition crossed party lines and factional divides. The British “founding fathers” of this movement were a Conservative Prime Minister, Winston Churchill, and a Labour Foreign Secretary, Ernest Bevin.

In 1951, the UK signed the treaty now named the European Convention on Human Rights (ECHR) containing a list of the fundamental freedoms essential for a safe and dignified life. These rights include the right not to be tortured, against slavery and forced labour, the right to free speech and self-expression and the right to a fair trial.  The ECHR established a common standard that applies to over 820 million human beings across 47 member states of the Council of Europe, the pan-European body championed by Churchill which produced the ECHR . 

It took until 1966, until Harold Wilson’s Labour government accepted the right of individuals to petition to have their case heard at the European Court of Human Rights (ECtHR). However, citizens still had to rely on enforcing these rights oversees in ECtHR in Strasbourg rather than at home, a costly and lengthy process.

History of the HRA: New Labour bringing rights home

The Labour government in 1998 introduced the Human Rights Act (HRA) whose aim was to “bring rights home”. Central to this constitutional reform was for all three arms of the state (the executive, legislature and judiciary) to play a role in protecting human rights. The HRA brought in a number of major innovations:

  1. Public authorities must uphold human rightsThe aim of this provision was to encourage all public bodies to respect and protect  fundamental human rights in their policies and practices to avoid unnecessary litigation. But if a public authority was found to have acted in violation of an ECHR right, the victim could bring a claim in a local UK court;
  2. All individuals living under the jurisdiction of the UK government may claim remedies for breaches of their rights. While previously, only citizens had rights to seek remedy, under the HRA, all individuals have the ability to claim remedies and public authorities can be judicially reviewed where they have not respected fundamental rights;
  3. The courts must interpret legislation in line with human rights. A reading ‘compatible’ with the ECHR is required “so far as it is possible to do so”;
  4. The courts may review acts of Parliament. This was not possible before the HRA. If a higher court determines that primary legislation does not comply with fundamental human rights it  may make a ‘declaration of incompatibility’. This does not affect any law’s ongoing operation or enforcement nor is it binding on the parties. However, the impetus is then on Parliament to respond; and
  5. The Government must assess whether new legislation is compatible with human rightsA statement must be made in writing and published for each new bill to assess whether it is compatible with the ECHR.

The HRA was described at the time by judge Lord Browne-Wilkinson as an unprecedented “code of the moral principles which underlie the common law”. The HRA is now one of the key documents that underpin Britain’s constitution, along with the Act of Settlement (1701) and the Magna Carta (1215).