Legal System | Law Making
Human Rights Law: Introduction
Revision Note | Degree
Download
bitsoflaw.orgbits of law
Introduction
- concept of fundamental human rights has legal force within the UK
European Convention on Human Rights
- UK signed in 1951
- in 1965 recognised individual citizens have right to petition European Court of Human Rights
Human Rights Act 1998
- incorporates fundamental rights and freedoms contained within European Convention on Human Rights into UK law
- including right to life (Article 2), prohibition on inhuman or degrading treatment or punishment (Article 3), right to liberty and security (Article 5), right a fair trial (Article 6), 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
- should be compatible with Convention rights contained within 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
- Section 3:
- Minister introducing proposed legislation must make a statement of compatibility, about Bill's compatibility with the Act or 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.
- Section 19:
Existing Legislation
- Human Rights Act 1998 does not provide the courts power to invalidate or set aside primary legislation
- does allow judges, sitting in High Court and above, to make a declaration of incompatibility
- meaning 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.
- Section 4:
- several cases involving treatment of individuals suspected of terrorism related activities have challenged compatibility of legislation
A v Secretary of State for the Home Department [2005]
- As were foreign nationals who had been detained in the UK
- Home Secretary certified that each was a suspected international terrorist (under Section 23 of the Anti-terrorism, Crime and Security Act 2001)
- As were detained without charge or trial in accordance with a derogation from Article 5(1) of European Convention on Human Rights (Human Rights Act 1998 (Designated Derogation) Order 2001)
- Human Rights Act 1998 (Designated Derogation) Order 2001 was quashed- not a proportionate so not compatible with Article 15 of the European Convention on Human Rights
- S23 Anti-terrorism, Crime and Security Act 2001 declared incompatible with Articles 5 and 14 as it was disproportionate and discriminated on the ground of nationality or immigration status
- provisions were repealed by Prevention of Terrorism Act 2005, replaced with control orders
Secretary of State for the Home Department v MB [2008]
- case related Home Secretary's decision to impose a non derogating control order on MB (under Section 2 of Prevention of Terrorism Act 2005)
- Home Secretary believed MB intended to travel to Iraq to fight against coalition forces
- procedure for making a non derogating control order was held incompatible with MB's right to a fair hearing under Article 6 ofEuropean Convention on Human Rights
- Court of Appeal overturned the declaration and this decision was upheld by the House of Lords
- 2000 - August 2011: 19 declarations of incompatibility - 12 remedied by primary legislation, 2 remedied by a remedial order under section 10 of Human Rights Act 1998, 4 had already been remedied by primary legislation and 1 is under consideration (Responding to Human Rights Judgments)