Wednesday, 19 May 2010

The Human Rights Act, is it THAT important anyway?! Some Law and Facts to ponder

Right...there has been a lot of talk in Jolly old England recently about our new government repealing the Human Rights Act, understandably this has got quite a few people hot under the collar; a few things you hear around is “how can a government take away our human rights”, or questions on dictatorial states, or most sickeningly one person saying “I'm sure this is how Nazi Germany started” that person, if you read this:

a) Stop reading the Daily Mail
b) No that is not how Nazi Germany started...

Anyway, I'm gonna put up a little disclaimer here, just like pretty much anything you read on the internet, do not take this as 100% fact, do some research or something if your that bothered. I am currently in the process of my second law postgraduate course, so am by no means an expert, and it's been a few months since I've done EC Law and I'm going from memory so don't get all uppity...but as far as I'm aware this is correct.

Now to put your minds at rest: Does repealing the Human Rights Act 1998 (HRA) have the effect of removing your human rights?!


Firstly a brief history, in 1953 the European Convention on Human Rights (ECHR) came into force. All member states of the European Community (EC) are expected to adhere to it, and new members are expected to ratify it at the earliest opportunity, I'm not going to go through the full details about the ECHR, but there are various articles in it relating to, can you believe it, yours and my Human Rights.

Now in 1998, we decided to fully enshrine the ECHR into our legal system using the HRA. The aim of the HRA was/is to “give further effect” to the ECHR. It makes it unlawful for any public body to act in a way which is in contravention of the ECHR, and it makes UK judges in courts to take into account any judgements made by the European Court of Human Rights (ECtHR), and to interpret British legislation to give effect to the ECHR. There are other issues in the HRA, involving the creation of legislation to be compatible with the ECHR as well, but these are the important issues. Essentially, the HRA confers power to the individual to rely on the ECHR in the British courts.

Wait a minute, I hear you cry, this sounds very bad...repealing the HRA, is taking away my power to rely on my Human Rights... isn't, only in the British Courts. We have still signed up to the ECHR, and therefore our government, our judges, our legal system, et al. have to respect those rights, and they have to still be given to us. Remember that we signed up to the ECHR in 1953, and the HRA 1998 (which mostly came into force in 2000) was almost 50 years later. Does that mean in those 50 years the ECHR was pointless? Of course not, in those years:

  1. Firstly, because we'd signed up for the ECHR the courts took the view that it was an important source of public policy where the ECHR was necessary to determine such issues

  2. Secondly, the courts took the ECHR into account when dealing with matters of interpretation of legislation where it was reasonable to do so.

  3. Thirdly, (and perhaps importantly), where there was an absence of statutory provision the court could take into account the ECHR when developing common law.

So even during those 50 years where we didn't have the HRA, the court still read British Law to give effect to the ECHR.

The problem we have next is about the HRA enshrining the Convention into British Law, and then giving rights to the individual. Ok, admittedly this is a pain, it would mean that trying to make Human Rights point, which would ordinarily have been governed by the HRA or ECHR would not be possible in British Courts, but that is not to say you don't have a remedy.

Remember the ECtHR? A person from a member state can make an application there if they feel they have had their Human Rights infringed. There are only 3 requirements that you need to fulfil:

  1. That you have been a victim of a violation of one or more of your Convention rights

  2. You have persued any remedies that are available in the member state; while the Human Rights Act 1998 is in force, that would mean using that act through the national courts. If this act gets repealed, you may not have any remedies, and would therefore be entitled to skip this step.

  3. You must have made your application within 6 months of either the judgement being passed in your court case (especially in relation to no.2 above), or if there was no remedy available within 6 months of the alleged violation.

...and that's it. It is that simple to make an application to the ECtHR. Ok, admittedly it'll be a slow long process, but most Human Rights related court procedures are anyway.

So, hopefully this will show at least a little bit, that repealing the HRA is not the end of the world. It is a pain in the arse of course, but it doesn't mean that you will be losing your Rights. I'm not saying I agree that it should be repealed, and I'm not saying it shouldn't; I've tried to be as politically neutral as possible, and just lay down some facts. Hopefully I've got all the facts straight in my head, but most importantly of all:

If the HRA '98 does get repealed, you will still have a remedy under European Law if you think there has been a breach of your human rights!! :)

Thank you for listening, this has been a lecture by


Much love to you all! :) x

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