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Friday, 29 September, 2000, 15:37 GMT 16:37 UK
Human Rights Act: How it works
The Royal Courts of Justice
The Royal Courts of Justice: Scene for Human Rights cases
The Human Rights Act (1998) introduced the European Convention on Human Rights into British law, of which the UK was one of the primary authors.

What this means in practice is that people who wish to bring cases where they believe their rights have been violated, they will now be able to do so through the British courts, rather than having to spend years pursuing the case at the European Court of Human Rights.

The Act makes it unlawful for any "public authority" to act in such a way that is "incompatible" with a right under the Convention.

A person can only bring a case against a public authority if they can be classed as the "victim" in a specific circumstance.

This means that pressure groups will not be able to bring general cases to further their cause, they will have to seek cases to support through the courts.

The Human Right Act has two key principles at its core:

  • The rule of law
  • Proportionality

    Rule of law

    This means that the Rights are subject to a limited amount of interference by the state in certain legally defined circumstances that benefit society as a whole rather than just the individual.

    For example, the Convention protects somebody from "arbitrary detention" - meaning that a person can be jailed or held against their will "in accordance with a procedure prescribed in law" - ie a jail sentence after a trial.


    This means that the exercise of the rights and their protection by the courts has to be done in a way that is proportional to the needs of society, or a "pressing social need" for interference.

    What this does is offer a defence against the state overriding an individual right through disproportionate action.

    For instance, some media campaigners believe that the Human Rights Act will put an end to the occasionally recurring debate on a privacy law tailored to curtailing the press.

    They say that this would be a disproportionate denial of the right to free expression under the Convention.

    But at the same time, case law formed from the Convention may provide adequate protection of privacy from disproportionate media intrusion.

    Primary legislation: Court powers

    If a court agrees that there has been a breach of somebody's rights in primary legislation, ie, Acts passed by Parliament, the court will make a "declaration of incompatibility".

    This does not strike out the legislation of the offending section. Instead, it bats the ball back to Government for it to decide what to do next.

    Ministers have the power to take immediate "remedial" action to remove the offending part of legislation but it is thought that this instrument will be rarely used.

    If the incompatible law is not ammended, changed or repealed in Parliament, then the individual has the right to take their case to the European Court of Human Rights which can act to force government to change legislation contravening the Convention.

    Sedondary legislation: Court powers

    If a court agrees with the person bringing the case that their rights have been breached under secondary legislation, ie ministerial regulations made outside of Parliament, the courts do have the power to set that legislation aside if there is nothing in the primary legislation preventing them from doing so.

    Public authorities: Court powers

    Courts can include damages against a public body, for instance a local authority, where judges believe that payments to the complainant would result in "just satisfaction".

    Who are the public bodies?

    Obvious public bodies include government departments, the NHS and the police.

    Organisations which carry out a public function, such as Railtrack, are included in the definition.

    There is a question mark over whether the BBC, as a public service broadcaster but independent of government, will be ruled a public body.

    Private bodies: Court powers

    While the Act describes how "public authorities" must comply with the Convention, private individuals, bodies or companies may fall foul of the law because the courts, as a public body, have a responsibility themselves to ensure that the rights of those brining cases are upheld.

    What it means for government Every Bill that is placed before Parliament must now include a "statement of compatibility" from the relevant departmental minister, confirming that it complies with the Convention.

    Margin of appreciation

    The European Court of Human Rights developed the concept of "margin of appreciation" to take into account the broadly-drawn principles of the Convention and how they are interpreted in different societies.

    This margin allows a country a degree of defence at the European Court where judges are obliged to take into account the cultural, historic and philosophical differences between Strasbourg and the nation in question since what is right for Spain may not be right for the UK.

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