Human Rights Act - some detail

Introduction	The Human Rights Act most important change to the English Legal System this century implemented on 2nd October 2000. Described by a senior Judge in the field, Lord Lester, as the most significant piece of legislation since the Bill of Rights 1688 Many of our existing laws, practices and procedures are already compatible with the European Convention on Human Rights (The Convention).
Background	After the horrors of World War II, the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) was drafted, mainly by British lawyers. To prevent repetition of the atrocities, which occurred during the war, and as a way of guaranteeing the citizens of Europe basic Human Rights and Freedoms.
The objective of the Convention	has been identified as the protection of individual Human Rights, and the maintenance and promotion of the ideals and values of a democratic society. These values are pluralism, tolerance and broadmindedness. The Convention seeks to achieve a fair balance between the demands of the general interests of the community and the protection of Human Rights. Approved by the UK government in the 1950s and is now incorporated into our law.
What the Act does	The Act brings much of the European Convention on Human Rights into domestic (UK) law. The new legislation enables people to use the Convention in proceedings in the UK courts, rather than taking their case to the Court of Human Rights in Strasbourg.
New canon of interpretation	The Act requires what has been called 'a new way of thinking'.
Impact of the Human Rights Act 1998	The Convention's aim is to protect individuals against the power of the State and other Public Authorities (such as the courts). Only someone who is directly affected by the action in question ‑ a *"victim"* in the terms of the Act ‑ may bring a Human Rights challenge. under Section 7, a party bringing a challenge must have the necessary standing, namely that they must be an actual or potential victim of an unlawful act. No representative action can be brought by those unlikely to be directly affected. Under Section 7(5) there is a limitation period of one year from the act complained of, or a longer period if "equitable". Only civil liability results from a breach of Convention rights. The Act acts as a shield, not a sword.
Rights Unlimited?	If you were asked what Rights you would want guaranteed for yourself and your family, you may choose, for example, the Right to life, liberty, freedom of speech and religious practice. Under the Human Rights Act 1998 many of the Rights contained in the European Convention on Human Rights (the Convention) will be available to people using the British courts.
Discrimination	The Convention does not provide any independent protection from discrimination. The Convention does provide that the Rights and Freedoms contained in the Convention shall be enjoyed equally by all citizens irrespective of their race, colour, language, sex etc. (Article 14).
Arbitration is it a breach of Art 6?	There has been some debate as to whether arbitration is in breach of Article 6, the Right to a Fair Trial. Arbitrations are not held in public and the arbitrator is not necessarily independent (although he is obliged to be impartial). Arbitration takes place by agreement. Can you contract out of your rights under the Act and the Convention? Apparently not, because of the way that the Act is framed making it unlawful per se for a Public Authority to act in breach of Convention rights. Under European case law it is possible to waive a right to a public hearing. Therefore it should be possible to agree to arbitrate in private but there must be an adequate right of appeal to the courts. Such a right to appeal from arbitration is quite limited, and there may, therefore, be a question mark over this aspect of arbitration. The Institute of Advanced Legal Studies’ committee under the chairmanship of Mr Justice Moses currently looking at the impact of the Act on Arbitration.
Mediation not thought to be a breach	It is most unlikely that mediation is in breach of Convention rights. Mediation does not prevent but merely delays recourse to the courts, provided that it is not stated to be final and binding as a remedy. There is an interesting point if mediation is made "compulsory" for parties under the Civil Procedure Rules ("CPR") – if they refuse they may face costs penalties. The Judiciary is at present keen to avoid such compulsion.
The Civil Procedure Rules	There has been comment that certain aspects of the Rules are not Act compatible or may need to be exercised with extreme caution in view of the Act such as injunctions, freezing and search orders. This of course has yet to be tested in the courts but may result in "Declarations of incompatibility" being made.
£39 Million 8 High court judges	Lord Lester of Herne Hill, the QC who led the campaign for the introduction of the Human Rights Act for over 20 years, has called for the legal profession to "make the Act a measure that commands widespread public confidence" and not to cause congestion in the judicial system by bringing poorly prepared or misconceived cases before the courts. The Department for Constitutional Affairs (formerly the Lord Chancellor's Department) set aside £39 million to cover legal aid costs and £21 million for extra court sittings following implementation of the 1998 Act on October 2, 2000, and powers have been granted for eight more High Court judges to assist with the extra workloads.
Types of Rights	Convention Rights can be put into distinct categories: absolute, qualified and limited.
Absolute Rights	These Rights cannot be restricted in any way or in any circumstances, e.g. the Prohibition of Torture or of Inhuman or Degrading Treatment (Article 3). If the conduct of the State amounts to "torture" as defined by the Court of Human Rights, a breach of Article 3 will always result.	Absolute Rights Article 2 – Right to Life Article 3 – Prohibition of torture Article 4(1) – slavery and Servitude
Limited Rights	Some Rights contain a clause that prescribes set circumstances in which the Right may be infringed without breaching the Article. For example, Right to liberty and security (Article 5) prevents detention except in particular prescribed circumstances e.g. detention following conviction by a court.	Limited Right Article 5 – Liberty and Security Article 6 – Fair Trial
Qualified Rights	The Rights, Prohibitions and Freedoms in many of the Articles of the Convention are subject to qualifications. These qualification clauses enable a balance to be struck between the Rights of an individual and the interests of a democratic society. This concept is known as the "doctrine of proportionality". In such circumstances, a person's Rights may only be restricted if: there is a domestic law which permits the restriction; and there is a legitimate aim; and there is a pressing social need for the restriction which goes no further than is necessary (proportionate) An example is the Right to respect for private and family life (Article 8). This Article provides that its effect may be restricted by the State, e.g. in the interests of prevention of disorder or crime.	Qualified Rights Article 8 – private and Family Life Article 9 – Freedom of thought, conscience and religion Article 10 – Freedom of expression Article 11 – Freedom of assembly and association.
Prohibition of torture	Article 3 (Prohibition of Torture) states no one shall be subjected to torture or to inhuman or degrading treatment or punishment. The Court has said that the treatment must attain a minimum level of severity before the Convention Right is breached. This was illustrated in the case of a person locked in a cell for 23 hours a day for a four month period in conditions criticised by the Chief Inspector of Prisons. The prisoner claimed a breach under Article 3 but his application was unsuccessful. Applications in respect of the handcuffing of defendants in court are unlikely to breach Article 3 provided that the existing legal test is satisfied. However, this is an area of the Convention which the Court of Human Rights has indicated will be constantly re-appraised in the light of prevailing circumstances, the "Living Instrument Approach". There was a furore over women who were handcuffed whilst giving birth. Prison authorities have reviewed practices and procedures in respect of such women.
Giving Reasons in Open Court	In order to demonstrate that a fair hearing has been conducted by an independent and impartial tribunal (Article 6) courts - not juries - are required to give reasons for their decisions. The concept of a fair trial under Article 6 of the Act requires a more open and transparent judicial process.
N.B. There are no Articles 1, 13 or 15 in Schedule 1 of the HRA 1998. In the Convention Article 1, Obligation to respect Human Rights, is not a Right but an obligation of the High Contracting Parties to secure the jurisdiction to the Rights and freedoms as defined in Section 1 of the Convention. Article 13 is the Right to Effective Remedy. The Act itself provides the remedy. Article 15 deals with Derogation in Time of Emergency and this is covered by Section 14 and Schedule 3 of the HRA. Similarly, only protocols 1 and 6 of the Convention are in Schedule 1 of the HRA.