Legal System | Law Making
Human Rights Law: Introduction
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Introduction
The concept of fundamental human rights has legal force within the UK.
European Convention on Human Rights
UK signed the Convention in 1951 and in 1965 recognised individual citizens have a right to petition the European Court of Human Rights.
Human Rights Act 1998
Incorporates the fundamental rights and freedoms contained within the European Convention on Human Rights into UK law.
Including the right to life (Article 2), the prohibition on torture and inhuman or degrading treatment or punishment (Article 3), the right to liberty and security of the person (Article 5), the right a fair trial (Article 6), the right to respect for private and family life (Article 8), freedom of thought, conscience and religion (Article 9), freedom of expression (Article 10) and freedom of assembly and association (Article 11).
New Legislation
Legislation should be compatible with Convention rights contained within the Human Rights Act 1998.
Human Rights Act 1998
Section 3:
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2)This section-
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
The Human Rights Act 1998 requires the Minister introducing proposed legislation must make a written statement (a statement of compatibility), prior to Second Reading, about the Bill's compatibility with the Act. Alternatively the Minister must explicitly state that despite being unable to declare the Bill compatible the Government has decided to proceed with the Bill.
Human Rights Act 1998
Section 19:
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill-
(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights ('a statement of compatibility'); or
(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill
(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.
Existing Legislation
The Human Rights Act 1998 does not provide the courts with the power to invalidate or set aside primary legislation. However, it does allow judges, sitting in the High Court, Court of Appeal, Privy Council or Supreme Court, to make a declaration of incompatibility. This means the court has found a piece of legislation to be in conflict with the Human Rights Act 1998.
Human Rights Act 1998
Section 4:
(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied -
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
Several cases involving the treatment of those suspected of terrorism related activities have challenged the compatibility of legislation.
A v Secretary of State for the Home Department [2005]
Appellants were foreign nationals who had been detained in the UK. The Home Secretary had certified that each individual was a suspected international terrorist, under Section 23 of the Anti-terrorism, Crime and Security Act 2001. They were detained without charge or trial in accordance with a derogation from Article 5(1) of European Convention on Human Rights provided by the Human Rights Act 1998 (Designated Derogation) Order 2001.
The Human Rights Act 1998 (Designated Derogation) Order 2001 was quashed because it was not a proportionate means of achieving the aim, so not compatible with Article 15 of the European Convention on Human Rights.
Section 23 of the Anti-terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and 14 as it was disproportionate and permitted the detention of suspected international terrorists in a way that discriminated on the ground of nationality or immigration status.
The provisions were repealed by the Prevention of Terrorism Act 2005, which put in place a new regime of control orders.
Secretary of State for the Home Department v MB [2008]
The case related to the Home Secretary's decision to impose a non derogating control order on MB, under Section 2 of the Prevention of Terrorism Act 2005. Home Secretary believed MB intended to travel to Iraq to fight against coalition forces.
The procedure provided for making a non derogating control order was held incompatible with MB's right to a fair hearing under Article 6 of the European Convention on Human Rights. However, the Court of Appeal overturned the declaration and this decision which was upheld by the House of Lords.
Between 2000 and August 2011, there were 19 declarations of incompatibility and of these, 12 have been remedied by later primary legislation, 2 have been remedied by a remedial order under section 10 of the Human Rights Act 1998, 4 relate to provisions that had already been remedied by primary legislation at the time of the declaration and 1 is under consideration as to how to remedy the incompatibility (as stated in Responding to Human Rights Judgments).