The Human Rights Act 1998 gives legal effect in the UK to certain fundamental rights and freedoms contained in the European Convention on Human Rights (ECHR).
These rights not only affect matters of life and death like freedom from torture and killing, but also affect your rights in everyday life: what you can say and do, your beliefs, your right to a fair trial and many other similar basic entitlements.
What is the Human Rights Act?
The Human Rights Act 1998 is an Act of the Westminster Parliament which makes the European Convention on Human Rights part of the law of all parts of the UK. The European Convention was drawn up in 1950, and since 1966 people from the UK have been able to take cases to the European Court of Human Rights alleging that the UK government has failed to uphold their human rights.
The Human Rights Act 1998 makes the European Convention binding at national level as well, so that people in the UK can complain in their local courts about a failure to uphold their Convention Rights.
Who upholds the European Convention?
The European Convention on Human Rights was agreed by the Council of Europe. The Council of Europe is an organisation made up of different governments and was created in 1949 with the general aim of enhancing the cultural, social and political life of Europe.
It is different from what we now call the European Union, which was first created as the Common Market in 1957 and which consists of 15 countries (all of which are also members of the Council of Europe).
When did the Human Rights Act come into effect?
Although passed in 1998, the Human Rights Act did not come fully into effect until 2 October 2000. Since then cases can be taken in relation to the actions of any public authority in Northern Ireland.
What does it do?
Now that the European Convention is part of the law of Northern Ireland, individuals and organisations can go to court or to a tribunal to seek a remedy, if they believe that the rights conferred on them by the European Convention have been violated by a public authority.
If the violation has occurred because the public authority has been complying with an Act of the Westminster Parliament, the High Court of Northern Ireland is able to declare that Act to be incompatible with the European Convention. This sends a clear message to the government that it should ask Parliament to approve a corrective law as quickly as possible.
The declaration of incompatibility does not, however, achieve any other remedy for the person whose right has been violated. Courts are still not permitted to declare an Act of the Westminster Parliament to be invalid (unlike in many other modern democracies, such as Ireland, Germany, the United States of America or South Africa).
If the violation has occurred because the public authority has been complying with some law other than an Act of the Westminster Parliament such as an Act of the Northern Ireland Assembly, a piece of secondary legislation like an Order in Council or a Regulation, or a piece of judge-made law laid down in a previous case, any court in Northern Ireland is able to declare that law to be invalid and is able to grant any other remedy which it deems appropriate, including, on occasions, compensation.
If a court is uncertain whether a piece of legislation is or is not compatible with the European Convention, it must give effect to the piece of legislation in a way which upholds people's Convention rights so far as it is possible to do so.
Which bodies have to comply with the Act?
Every public authority - including courts and tribunals - has to comply with the Act (and therefore with the European Convention). "Public authority" means every person or body carrying out a public function, including private bodies authorities that do so, for example, a company that supplies electricity to members of the public, or a charity that provides services to the public.
Who is a victim of a human rights breach?
A victim is a person who is adversely affected by the action of a public authority. Victims can include companies as well as individuals and may also be relatives of the victim where a complaint is made about his or her death. Only a person considered a victim can bring proceedings against a public authority under the Human Rights Act.
What rights are protected by the Act?
The Human Rights Act protects the following rights from the European Convention of Human Rights:
Article 2 - the right to life
Article 3 - the right not to be tortured or inhumanly or degradingly treated or punished
Article 4 - the right not to be required to perform forced labour
Article 5 - the right to liberty and security of the person
Article 6 - the right to a fair trial (and to a range of other associated things, such as the free assistance of an interpreter if one cannot understand the language in a trial situation)
Article 7 - the right not to be punished for something which was not a crime at the time it was done
Article 8 - the right to respect for one's private and family life, correspondence and home
Article 9 - the right to freedom of thought, conscience and religion
Article 10 - the right to freedom of expression, freedom to hold opinions and freedom to receive and impart information
Article 11 - the right to freedom of peaceful assembly and freedom of association with others
Article 12 - the right to marry and found a family
Article 14 - the right not to have Convention rights secured in a discriminatory way
Protocol 1, Article 1- the right to peaceful enjoyment of one's possessions
Protocol 1, Article 2- the right to education
Protocol 1, Article 3- the right to free and secret elections at reasonable intervals.
Are there any absolute rights?
It should be noted that Article 3- the right not to be tortured or inhumanly or degradingly treated or punished - confers an "absolute" right to which there can be no exceptions. All the other rights are expressly qualified in certain respects. For example, the violation of the right to life is "permitted" if a death results from the use of force which was no more than absolutely necessary to effect a lawful arrest.
Likewise, the right to freedom of peaceful assembly can be restricted if this is necessary in the interests of public safety or for the prevention of disorder. The European Court has interpreted the Articles as imposing positive obligations on states to confer rights, not just negative obligations not to interfere with rights.
Rights v Responsibilities
Most rights are not absolute and may be limited where it is necessary to achieve a legitimate aim and if the limitation is proportionate to that aim. The court seeks to strike a "fair balance between the general interest of the community and requirements of protection for the individuals human rights".
What do these rights mean in practice?
The judgments of the European Court of Human Rights flesh out what is meant by the phrases used in the European Convention. They tell us, for example, that for the moment at any rate, the right to life conferred by Article 2 does not extend to an unborn child and that the right to respect for a private life conferred by Article 8 means that homosexuality between consenting adults cannot be a crime.
Judges applying the Human Rights Act 1998 have to interpret the meaning of words used in the European Convention by taking into account the judgments already issued by the European Court of Human Rights. These judgments are all available on the Council of Europe's website.
Is it still possible to take cases to Europe?
Since 1966 relatively few cases from Northern Ireland have resulted in a full judgment by the European Court of Human Rights. The Court now issues several hundred judgments each year. It has a huge backlog of cases, which can take years to be dealt with. An individual who has sought a remedy in our local courts and who is dissatisfied with the outcome can still pursue a remedy at the European Court.
What other documents on human rights need to be borne in mind?
The European Union often issues Directives which protect human rights (for example, the Equal Pay Directive). It is also in the process of agreeing a Charter of Fundamental Rights, although the exact status this will have is still uncertain.
The UK government has also agreed to comply with a number of other treaties on human rights, such as the United Nations Covenant on Economic, Social and Cultural Rights, but virtually none of these treaties has yet been made part of the national law of the UK.
The role of the Northern Ireland Human Rights Commission
The Northern Ireland Human Rights Commission can give general advice on the scope of the Human Rights Act and from time to time runs educational seminars to train people in how to use the Act.
The Commission also has the power to support people who wish to take a human rights issue to court, but because of its limited resources it has to apply its criteria very strictly when deciding which cases to support.
In respect of human rights violations, the Northern Ireland Human Rights Commission can:
- Provide advice to individuals;
- Investigate complaints;
- Assist individuals to bring legal proceedings;
- Bring proceedings in our own name and;
- Intervene as a third party or amicus curiae in legal proceedings.
Our legal team deals with a wide range of complaints however we can only take up issues that directly relate to human rights and that fall within our areas of strategic priority.
If we are unable to take up your case, we will endeavor to refer you to a more appropriate agency that can assist you.
If you would like to make an appointment to discuss a complaint, please contact our office.