It is important to be aware of the European (not EU) background to human rights legislation. The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law. The Convention is a treaty of the Council of Europe which is based, along with the European Court of Human Rights, in Strasbourg. Neither body is part of the EU. The Convention guarantees a number of rights and freedoms, including:
- the right to a fair and public trial within a reasonable time (this applies to any case involving civil rights and obligations, and not just criminal trials),
- the right to respect for private and family life, home and correspondence, and
- the right to peaceful enjoyment of possessions and protection of property.
The Convention is intended, amongst other things, to promote the ideals and values of a democratic society. It is therefore to be given a broad and generous interpretation, and the courts will look at the substance and reality of what is involved, and not just the form. The Convention is also a dynamic document which must be interpreted in the light of present-day conditions. Societies and values change, and these changes are taken into account.
The Convention incorporates two important concepts. The first is proportionality – any interference with a Convention right must be in proportion to the aim being pursued. The second concept is legal certainty. Any action impinging on a human right must be authorised by a specific legal rule or regime and not, for instance, by non-statutory guidance.
The Strasbourg Court looks to see whether there are common European standards but on the other hand it is supposed to be reluctant to substitute its own views for those of domestic authorities in those cases where it is necessary to strike a balance between competing considerations. This applies, for instance, where there is a balance to be struck between the demands of the community or society and individual property rights. The Court generally respects the right of a member state to control the entry, residence and expulsion of aliens. On the other hand, it has been very reluctant to permit the deprivation of property without compensation.
Turning to the UK legislation, it is already clear that the Human Rights Act has fundamentally altered the way in which the British courts approach the interpretation of statutory provisions. British judges need not slavishly follow European Court decisions, but they must take them into account. They will therefore seek to interpret UK legislation in a way which is compatible with the Convention. In doing so, the Courts can quash or ignore secondary legislation, but they cannot override the clear meaning of primary legislation, even though it may be equally clear that the legislation is incompatible with the Convention. The Courts will in these circumstances issue a declaration of incompatibility whereupon Parliament must decide whether it agrees with the Courts, and change the law, or whether it disagrees with the Courts and risk having the aggrieved citizen take the case to the European Court of Human Rights. As of mid-2016, the former route had been taken in 19 out of the 20 previous declarations of incompatibility.
Even today, most civil servants outside the Home Office and the Department of Justice will seldom have to concern themselves with the majority of the provisions of the Act. Most of us are seldom in the business of removing the right to life, or to marry. But we do need to bear in mind that the right to a fair trial applies just as much to civil proceedings and tribunals as to the criminal law. Great care nowadays needs therefore to be taken to ensure that:
• tribunals are genuinely independent and impartial - not political appointees and not on short term appointments,
• hearings are arranged reasonably quickly, and held in public, either initially or on appeal, and
• there are effective appeal provisions throughout the legislation for which we are responsible.
The RightsInfo website has lots of useful, easily accessible further information - and then, as ever, read your department's detailed guidance and take legal advice if you are unsure, or are challenged.
Lady Hale's 2017 speech The UK Constitution on the Move includes a very nice summary of the constitutional role of Human Rights legislation.
Some interesting current regulatory issues are summarised on the Understanding Regulation website.
And Simon Carne has written a helpful blog explaining the current UK debate about human rights legislation. He believes that, although politicians may have got the law wrong, many lawyers seem to have got the politics wrong.