The UK’s Human Rights Act Explained
Institutions, Justice / 28 Feb 2022

The UK’s Human Rights Act Explained

By Hannah Shewan Stevens, Freelance Journalist
Credit: Liberties

After more than a decade of ‘phoney war’ over the UK’s Human Rights Act, this administration now seems determined to follow through with its threat to ‘overhaul’ the landmark legislation. Against that backdrop, we break down here what the HRA is and how it protects us all, as well as outlining the government’s planned changes. 

The Human Rights Act (HRA) guards against anyone in the UK having their rights trampled by the state or infringed by another body. While the HRA is often mentioned with specific reference to its individual articles, such as the right to protection from discrimination or the right to life, the Act as a whole represents more than the sum of its parts. 

The HRA not only protects the rights of marginalised groups and individuals in society, important though that is: it is a shield for everyone’s basic rights in our society. The Act outlines 16 civil and political rights in various articles and protocols, including the rights to freedom of expression, to a fair trial and to freedom from inhuman or degrading treatment.

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What does the Human Rights Act do?

Written into law in 1998, the HRA incorporates rights set out in the European Convention on Human Rights (ECHR) into UK domestic law. Its provisions mean that anyone who has their human rights breached can take their case to a British court, rather than having to seek justice at the European Court of Human Rights (ECtHR) in Strasbourg, France. 

The ECHR addresses the human rights of people in countries that belong to the Council of Europe (CoE), the continent’s leading human rights organisation. Although, following Brexit, the UK has now left the European Union (EU), there is no direct link between its ongoing membership of the ECHR and its previous membership of the EU. Therefore, the rights set out in the ECHR still apply in the UK because, like all 47 member states of the council, the UK has signed it. 

To cement these rights, the UK parliament passed the HRA to include them in domestic UK law. Articles 1 and 13 of the ECHR do not feature in the HRA because, by creating the Act, the UK has fulfilled these rights. ECHR Article 1 outlines how member states must fix the rights included in the Convention in their own jurisdiction, which the HRA achieves in the UK. ECHR Article 13 states that if people’s rights are violated they must be able to access an effective remedy, like taking their case to a court for judgement. The HRA ensures that this can happen too. 

The HRA also acts as a preventative measure by requiring all public bodies, including courts, local authorities, hospitals, publicly funded schools, the police and other bodies carrying out public functions to protect and respect your human rights. 

The HRA doesn’t just build an environment where people can sue public authorities, it creates an obligation for public authorities to not do anything that would be a breach of people’s human rights,” said Adam Wagner, barrister at Doughty Street Chambers. “It imposes a duty on public authorities.”

Wagner continued: “The magic of the HRA is that duty, because litigation is the last resort. Using litigation to solve human rights issues is a bit like cleaning the river downstream once it’s been polluted upstream. The clean-up is a hell of a lot more expensive than not polluting it in the first place.”

The HRA also ensures that Parliament makes new laws compatible with the rights outlined in the ECHR. Parliament remains sovereign and technically can pass laws that are incompatible with rights expressed in the ECHR, but the HRA acts as a deterrent.

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How did the HRA come about? 

With the Russian invasion of Ukraine now having brought war to Europe for the first time in the 21st century, it is worth remembering the direct line that can be traced in the 20th century between the horrors of World War II and the Holocaust and the advent of the Human Rights Act. 

Following the Second World War and the atrocities committed during it, the global community sought to take stock of the tragedy and consider how to prevent the same mistakes from being made again in the future. The belief that universal human rights should be globally respected became increasingly popular and national governments sought to forge improved international relationships to help prevent future conflicts. Ultimately, this led to the formation of the United Nations (UN) in June 1945. 

Three years later, led by Eleanor Roosevelt, then First Lady of the United States, 50 representatives from the UN gathered to devise a list of all the human rights to which everyone in the world should have access. On 10 December 1948, this became the Universal Declaration of Human Rights (UDHR), as agreed by the General Assembly of the UN. It summarised 30 rights and freedoms to which every global citizen should be entitled. These include a wide spectrum of civil and political rights, such as the rights to liberty, privacy and peaceful assembly. 

The UDHR represented a significant shift in global politics. It said to the world that all human beings are born free and equal and each of them has rights that must be respected and protected. It also marked the first time a global commitment was made to respect human rights worldwide. Its foundations rest on the belief that all individuals require protection from potential abuses of power by the state. 

In 1950, the CoE drafted the ECHR, which was ratified in 1953. The rights it enshrines are built on the principles established in the UDHR. The UK, a founding member of the CoE, assented to the ECHR in March 1951 but British residents were unable to bring claims to the ECtHR until the 1960s. In 1966, the UK granted the right for people to take their cases directly to the ECtHR.  

In the 1980s, advocates for human rights, including those involved in Charter 88, argued that the executive branch of government was misusing its power. They campaigned for legislation to ensure human rights were protected here in the UK. The HRA was passed into UK law when it received Royal Assent on 9 November 1998. It became enforceable by law on 2 October 2000. It was passed by the then Labour government with cross-party support.

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What role does the HRA play in UK law?

​​The aim of the Act was to incorporate the rights contained in the ECHR into UK law. It makes it unlawful for any public body to infringe upon those rights. The legislation also requires the judiciary to consider any decisions, judgements or opinions of the ECtHR and interpret legislation accordingly. If it is impossible to interpret an Act of Parliament in a way that makes it compatible with the ECHR, judges are not permitted to override it. Instead, they are able to issue a declaration of incompatibility, although this does not actually negate the validity of any Act, thereby preserving parliamentary sovereignty. 

A 1997 White Paper, entitled ‘Rights Brought Home’, made the case for an HRA. “The effect of non-incorporation [of the ECHR] on the British people is a very practical one,” it read. “The rights, originally developed with major help from the United Kingdom Government, are no longer actually seen as British rights. And enforcing them takes too long and costs too much. It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000.”

The paper argued that “bringing these rights home” would ensure British people could argue for their rights in British courts without “inordinate delay and cost”. 

Wagner agreed: “The reasoning was bringing rights home because the idea was meant to make human rights accessible from home. So, rather than having to go to the ECtHR in Strasbourg, you could go to Romford County Court, for example, to claim your human rights.”

However, after the law was ratified, one early usage of the HRA by human rights lawyers drew criticism from those who felt that it was not protecting the right people. Known as the ‘Belmarsh case’, lawyers argued that non-UK nationals being detained in Belmarsh Prison without conviction was unlawful and a breach of their human rights. 

On 16 December 2004, the House of Lords upheld the decision that this practice, allowed by Part 4 of the Anti-Terrorism, Crime and Security Act 2001, was incompatible with the HRA. The Prevention of Terrorism Act 2005 was later introduced to replace Part 4 of the 2001 Act. 

As a lawyer and a campaigner, sometimes you’ve got to put the campaigner down and say, what can we actually realistically achieve?

“The 9/11 terrorist attacks created a different world,” explained Wagner. “All of a sudden, the government was trying to bring in quite illiberal laws to prevent terrorism, like detention without trial, and, at the same time, lawyers were starting to flex their human rights muscles, or at least flex the courts’ human rights muscles. They were saying, this detention without trial policy is a breach of human rights. It went to the highest court in that case. It succeeded, which showed the power of human rights laws.”

The timing of the case, which followed several years of high-profile terrorist incidents, arguably affected the public’s view of human rights legislation. 

“This idea of the Human Rights Act as the protector of terrorists, which was really just a quirk of time, was unpopular,” explained Wagner. “It could easily have been anything else, it could have been a pandemic, at which point the HRA might have been a protector of people, such as couples that wanted to be together, or people that wanted to see their parents in care homes. If it had been the pandemic that happened in 2001, rather than the terror attacks, that might have popularised the HRA. The timing was really damaging to the public view of human rights.”

There is no need for a Bill of Rights to replace the Human Rights Act

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There is no need for a Bill of Rights to replace the Human Rights Act

What are the limitations of the HRA?

Although the HRA is instrumental in protecting people’s human rights, it still has limitations. Its primary role of deterring public bodies from infringing upon people’s rights does not necessarily preclude them from doing so, meaning it cannot always prevent human rights abuses. 

For those who need to use the HRA to launch a legal case proving that their rights have been breached, there are significant barriers. One of the biggest can be the cost. 

The main barrier is the cost: it is very expensive,” said Wagner. “You don’t get costs protection unless you’ve got legal aid, which is very unlikely. A very small proportion of people in a very small proportion of cases would qualify for legal aid. You have to pay for a lawyer and, if you lose, you have to pay for the other side’s lawyers.”

Considering that the opposing party could be the government or a public authority with effectively unlimited resources, the risks attached to taking a human rights case to court are significant. Some would-be claimants are deterred by the financial risk which pursuing a case poses.  

Due to the difficulties associated with taking a case to court, many cases never get off the ground and claimants are unable to seek justice. 

Wagner said: “As a lawyer and a campaigner, sometimes you’ve got to put the campaigner down and say, what can we actually realistically achieve? As wonderful as it would be to fight an important point of principle and get a good outcome for this person, the risks can be too great for that individual. Either you’re playing with someone else’s money, or the public’s money if you’re legally aided or you’re crowdfunded.”

Although the HRA is a vital instrument that protects the rights of everybody in the UK, it does have limitations for those trying to use it to safeguard their rights. “The Human Rights Act works great when it works,” added Wagner. “As it is sometimes said, our justice system is open to all, just like the Ritz Hotel.”

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How has the HRA protected people’s rights?

Since its inception, the HRA has protected the rights of people in the UK in a wide variety of ways. Its creation has helped a culture of human rights evolve and the legislation is taken into account – to varying degrees – by statutory authorities who must abide by it.

Successful uses of the HRA have encompassed everything from anti-discrimination cases to cases that revolve around the right to life. For example, between 2005 and 2008, recorded mortality rates at Staffordshire General Hospital were higher than average. Patients also experienced low standards of care, with some left in beds in soiled clothes, and triage in Accident and Emergency (A&E) was undertaken by untrained staff. Using the HRA, which holds public bodies responsible for investigating deaths and mistreatment at the hands of the state, a full public inquiry was launched. It resulted in wide-ranging reforms to the NHS. 

The HRA is responsible for helping innumerable individuals and groups from all sections of UK society who have had their rights threatened or violated

In 2016, the HRA was essential in ensuring that there was a second investigation into the 1989 Hillsborough disaster that caused the death of 96 men, women and children at a football match. Article 2 of the HRA, the right to life, played a significant role in uncovering the truth surrounding the event. The second inquest found that the 96 Liverpool supporters who died were ‘unlawfully killed’. 

The HRA has played a crucial role in attaining equality milestones for marginalised groups, such as the LGBTQ+ community. In 2004, the Court of Appeal ruled that same-sex couples should have the same tenancy inheritance rights as heterosexual couples, stating that anything short of that breached the HRA on the basis of discrimination. Additionally, the HRA played a key role in achieving legal recognition for transgender people under the Gender Recognition Act 2004, which was passed after four cases were brought to court. 

Disabled people have also benefited greatly from the HRA’s influence. In 2014, a man referred to as “P” and his mother won a case citing the right to liberty in the HRA. P, who had cerebral palsy and Down’s Syndrome, required 24-hour care and was sent to live in a care home after his mother became too unwell to care for him. Cheshire West and Chester Council removed him from his mother’s home and placed him under the care of social services but he was not free to leave the care home. His mother went to the Supreme Court, argued that her son was being deprived of his liberty, and asked for protections to be put in place for her son and others in his position. The court ruled in her favour. 

A similar case arose with Steven Neary, who lived at home with his father and had autism and learning disabilities. Without listening to his or his father’s wishes, the local council removed him from the home for a year and the courts later ruled that his right to family life had been breached by the decision. He returned home after 359 days. 

These are just a few examples. The HRA is responsible for helping innumerable individuals and groups from all sections of UK society who have had their rights threatened or violated.

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What attempts have been made to change the HRA?

In 2006, the Conservative Party, under David Cameron’s leadership, said that it would repeal the Act and replace it with a modern version. In its 2015 manifesto, the party – by then five years into government – said that it would replace the HRA with a British Bill of Rights to “break the formal link between British courts and the ECtHR and make the [UK] Supreme Court the ultimate arbiter of human rights matters.”

However, a potential replacement was never substantively proposed and, whilst threatened, no such change was made during Cameron’s time in office as prime minister, nor during the tenure of his successor at No 10, Theresa May. 

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What does the future hold for the HRA?

The notion of an overhaul of the HRA has been circulating in Westminster for years, but, in December 2021, the government actually unveiled material plans to make the idea a reality. Beginning with a three-month consultation, the government plans to replace the HRA with a Bill of Rights.

They said: “We make far-reaching proposals for reform, with a particular focus on those quintessentially UK rights, such as freedom of speech and the right to trial by jury. We examine problematic areas, including the challenges in deporting foreign national offenders. We consider in detail the procedural framework of the Human Rights Act. And we look at the relationship between the UK courts and Parliament and the European Court of Human Rights in Strasbourg.”

The consultation covers five areas, paraphrased by the government below:

  1. Making sure our common law traditions and Parliamentary sovereignty are respected, and strengthening the role of the UK Supreme Court
  2. Providing a sharper focus on protecting fundamental rights
  3. Preventing the incremental expansion of rights without proper democratic oversight
  4. Emphasising the role of responsibilities within the human rights framework
  5. Facilitating a dialogue with Strasbourg, while guaranteeing Parliament its proper role.

The government has stated that they will seek the views of each of the devolved administrations across all four nations of the UK, “whilst reflecting our diversity and devolved competences.” Justice secretary, Dominic Raab, has described the government’s proposed changes as “common sense” designed to prevent abuses of the system and bolster “typically British rights like freedom of speech and trial by jury”. 

The announcement of the government’s plans to replace the HRA followed the publication of the Independent Human Rights Act Review (IHRAR) panel’s 580-page report on the functioning of the Act, which was set up to consider an array of issues associated with reforming the HRA and which reviewed the legislation’s impact over the past two decades. In particular, the IHRAR considered the impact that the Act has had on the relationship between the judiciary, government and parliament in the UK and the relationship between domestic courts and the ECtHR. 

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To review the potential impact of an overhaul of the HRA, parliament’s Joint Committee on Human Rights is hosting a series of oral evidence sessions to consider organisations’ concerns. Many human rights groups, including Liberty and the British Institute of Human Rights, have voiced concerns about any imminent overhaul.

“There is no need for a Bill of Rights to replace the Human Rights Act. Over its two decades in operation, the Human Rights Act has played a significant role in giving individuals the power to enforce their rights in practice,” Liberty argued in its guide to responding to the government’s consultation. “It has enabled people to challenge unlawful policies, to be treated with dignity by public authorities and to secure justice for their loved ones. It has helped bring a culture of respecting human rights into hospitals, schools, care homes and housing associations – changing the way that thousands of people are treated and supported.”

The government’s proposals include, but are not limited to, plans to “sharpen the separation of powers”, with the intention to make the UK Supreme Court the final arbiter for interpreting the ECHR in the UK. Additionally, ministers want to introduce a new legal test allowing judges to block “spurious” cases from making it to court, which Raab said would prevent “abuse of the system”, for instance by foreign offenders relying on Article 8 – the right to family life – “to frustrate their deportation from this country”. 

The government wants to add in an extra stage where you have to get permission to proceed with a human rights case,” explained Wagner. “So, before you can even bring a claim, you’ve got to get a court to say it’s arguable this claim will be successful. That adds extra costs and difficulty.”

The proposals have been broadly criticised by human rights charities and campaigners but the government appears determined to forge ahead with an overhaul after the conclusion of its consultation. Other concerns touch upon the lack of recognition in any overhaul of the different relationships between the HRA and the UK’s constituent nations with their devolved administrations. 

The HRA is written into the devolution agreement with Scotland, so, if the UK government replaces it in domestic law with a new Bill of Rights, it could call that agreement into question. 

Currently, no changes to the HRA have been made. The consultation on the government’s proposed reforms closes on 8 March 2022. Details of how one can respond to it can be found here. Following the end of the consultation, the government says it will publish a report summarising the results, which will include impact assessments on how proposed changes may affect different groups of people. Then, it will draw up a new bill. 

“It’s going to create confusion, inconsistencies, and lots more people are going to have to leave their homes and go to Strasbourg,” said Wagner. “Yet the whole point of the Human Rights Act is that you don’t have to get to Strasbourg – it’s the last resort.”

This article launches a week of EachOther content all about the Human Rights Act. Check out our Spotlight on the HRA, now and as the week unfolds, for news, views, videos and more.

 

About The Author

Hannah Shewan Stevens Freelance Journalist

Hannah Shewan Stevens is an NCTJ-accredited freelance journalist, editor, speaker and press officer based in Birmingham. She acted as EachOther's Interim Editor from Summer 2021 to January 2022. Her areas of interest are broad-ranging but the topics she is most passionate about are disability, social justice, sex and relationships and human rights. Hannah believes in using her own voice and elevating others to create meaningful change in the world. She is also a sex columnist for The Unwritten and has recently completed her first accreditation in delivering Relationships and Sex Education.

Hannah Shewan Stevens is an NCTJ-accredited freelance journalist, editor, speaker and press officer based in Birmingham. She acted as EachOther's Interim Editor from Summer 2021 to January 2022. Her areas of interest are broad-ranging but the topics she is most passionate about are disability, social justice, sex and relationships and human rights. Hannah believes in using her own voice and elevating others to create meaningful change in the world. She is also a sex columnist for The Unwritten and has recently completed her first accreditation in delivering Relationships and Sex Education.