Human Rights Act

The Human Rights Consortium works to defend and uphold the Human Rights Act, seeking to build on its protections.

Needs Alt Text

The Human Rights Act 1998 (HRA) is the foundational basis for every individual’s access to and enjoyment of human rights in the UK. The HRA ‘brought rights home’ by implementing most of the rights contained within the European Convention on Human Rights (ECHR) directly within the UK, empowering UK courts to uphold and enforce them while conferring specific powers ensuring the application of legislation in a rights-compliant manner.

This Act was essential not just in enshrining rights protections in law across the UK, but also providing the stability and rights framework for securing peace in Northern Ireland.

The Act was an essential element in fulfilling a key UK Government commitment in the Belfast/Good Friday Agreement to: ‘complete incorporation into Northern Ireland law of the European Convention on Human Rights (ECHR), with direct access to the courts, and remedies for breach of the Convention, including power for the courts to overrule Assembly legislation on grounds of inconsistency.’

While the power for courts to overrule Assembly legislation was created through the Northern Ireland Act, the HRA fulfilled the rest of this commitment, with the intention for it to be supplemented with a Bill of Rights for Northern Ireland which would expand and build on these Convention rights.

What’s in the Human Rights Act?

  • The Human Rights Act made the vast majority of European Convention Rights available in UK law. The UK Government ‘brought rights home‘ by ensuring that individuals could exercise their rights in domestic courts rather than relying on Strasbourg – so what rights are they?

    Convention Rights

    The Human Rights Act transposed the vast majority of the ‘Rights and Freedoms’ section of the European Convention of Human Rights into domestic law, making them available and enforceable in ways explored below. The rights contained within the Act are as follows:

    • Article 2: Right to life
    • Article 3: Freedom from torture and inhuman or degrading treatment
    • Article 4: Freedom from slavery and forced labour
    • Article 5: Right to liberty and security
    • Article 6: Right to a fair trial
    • Article 7: No punishment without law
    • Article 8: Respect for your private and family life, home and correspondence
    • Article 9: Freedom of thought, belief and religion
    • Article 10: Freedom of expression
    • Article 11: Freedom of assembly and association
    • Article 12: Right to marry and start a family
    • Article 14: Protection from discrimination in respect of these rights and freedoms
    • Protocol 1, Article 1: Right to peaceful enjoyment of your property
    • Protocol 1, Article 2: Right to education
    • Protocol 1, Article 3: Right to participate in free elections
    • Protocol 13, Article 1: Abolition of the death penalty

    The HRA does not directly incorporate Article 1 and Article 13, because both of these rights were seen by the Government at the time as being fulfilled by the Act itself. Article 1 requires that states ensure that the rights outlined in the ECHR are upheld in their jurisdiction, while Article 13 requires the implementation of effective remedies for rights violation and for access to the courts to uphold rights.

  • Positive obligations create duties on states and public bodies to directly and proactively uphold various rights through positive action. These obligations have been vital in Northern Ireland for ensuring adequate investigation and accountability over the Pat Finucane murder and the Omagh bombing.

    Positive Obligations

    Positive obligations create duties on states that are signed up to the ECHR to directly, proactively uphold various rights through positive action. They can be viewed as opposite to negative obligations, wherein states are required not to take actions which would violate rights, where positive obligations place a requirement for action on states. 

    Positive obligations have been an essential tool for domestic courts and the European Court of Human Rights (ECtHR) to ensure that states parties proactively uphold human rights standards. While the Convention does not specifically refer to ‘positive obligations’ in the text, case law has been developed in relation to specific rights which are interpreted as requiring positive action to uphold.  

    For instance, the Article 2 right to life places an obligation on states to effectively and independently investigate deaths, which has been reinforced in cases relating to the conflict in Northern Ireland, including on the murder of Pat Finucane and the Omagh bombing. 

    Positive obligations have also had a significant impact in upholding the rights of children and young people. In A v UK, the ECtHR found that UK laws on ‘reasonable chastisement’ were inadequate in protecting children from abuses of their Article 3 right to freedom from torture and inhumane treatment:

    “The law did not provide adequate protection to the applicant against treatment or punishment contrary to Article 3. Indeed, the Government have accepted that this law currently fails to provide adequate protection to children and should be amended.

    In the circumstances of the present case, the failure to provide adequate protection constitutes a violation of Article 3 of the Convention.”

    This positive obligation to protect individuals from torture and inhumane treatment was used again at the ECtHR in a child neglect case, Z v UK, wherein the child concerned was not adequately protected from harm by state authorities who were aware of instances of neglect.

    These are prime examples of positive obligations in action: they hold that Government inaction on rights violations should be treated similarly to direct Government action which violates rights. As such, they provide a vital tool in the protection of communities and individuals from rights violations, as well as acting as an essential remedy where abuses do occur. 

  • Domestic courts in the UK have what is known as an intepretive obligation/duty to, as far as possible, read domestic legislation as compatible with European Convention Rights. This can help ensure that laws are read and implemented in a rights-compliant manner.

    Interpretive Obligations

    Section 3 of the HRA contains the ‘interpretive obligation’ which requires domestic courts, tribunal or public authority to, “so far as it is possible to do so”, read domestic legislation as compatible with the Convention rights.

    In practice, while this does not give courts the power to amend legislation, it does provide them with the ability to interpret legislation differently to how the Government or public authorities implementing policies had been interpreting it, and ensure the implementation of laws in a rights-compliant manner. As such, if legislation was worded with such specificity as to necessitate a breach of Convention rights, these interpretive powers could not be used to remedy the breach, and the court would instead have to declare the legislation incompatible.

    These powers have generally meant that there were comparatively few cases where the legislation has been declared incompatible with the ECHR as courts have been able to ensure it was interpreted and implemented in a way that upheld rights. In the first 10 years of the HRA, there were less than 30 declarations of incompatibility.

  • The Human Rights Act requires Government ministers to lay a ‘Statement of Compatibility’ alongside any legislation they propose, outlining how they believe it complies with European Convention rights. In some cases, however, Ministers may identify that their Bill breaches the ECHR but that they wish to progress with it anyway.

    Statements of Compatibility

    Section 19 of the HRA places a requirement on Ministers sponsoring legislation in Parliament to lay a ‘statement of compatibility’ alongside their Bill before second reading. 

    This statement should provide the Minister’s assessment of whether or not their legislation is compatible with the European Convention on Human Rights. Some Bills, including the 2023 Illegal Migration Bill, was instead accompanied with a Section 19b ‘statement of incompatibility’, saying that the legislation may not meet the standards set by the Convention but that they wish to proceed with it anyway.

  • Section 4 of the HRA enables higher courts to declare legislation incompatible with Convention Rights, however they may not strike down laws. The buck is then passed to Westminster and the Government, who may pass a remedial order to amend the rights-violating legislation.

    Declarations of Incompatibility

    Section 4 provides higher courts with the ability to declare a particular part, or multiple parts, of an Act of Parliament to be incompatible with human rights. Rather than immediately repeal or amend the legislation, this passes the buck back to Parliament where they may decide how to remedy the incompatibility. 

    Section 10 and Schedule 2 of the HRA allow for ‘remedial orders’, which are amendments made to legislation which has been declared incompatible by the courts. These orders exist to ensure that rights-violating legislation can be fixed quickly and easily, while still providing Parliament the ability to have its say.

    Ministers may lay a remedial order before Parliament for 60 parliamentary days to be approved by both Houses, after which it will come into effect. Interim remedial orders may be used in cases where the matter requires immediate attention, but will have no effect unless approved by both Houses of Parliament within 120 parliamentary days.

  • The HRA creates the ability for individuals to directly enforce their rights through domestic courts: a key commitment within the Belfast/Good Friday Agreement. This, combined with positive and interpretive obligations, allow for rights violations to be meaningfully addressed and remedied under the Act.

    Direct Access to the Courts

    The HRA, as referenced above, was vital in fulfilling several commitments made in the Belfast/Good Friday Agreement, including that on ensuring “direct access to the courts” to uphold Convention rights. The Human Rights Act created powers both for individuals and courts to ensure that this was condition was met. 

    The Act creates the ability for individuals to take a case against a Government department or public authority – such as a police body or health and social care trust – should they feel their rights were violated. 

    Courts have the ability to find a particular action or inaction by public authorities violated an individual’s human rights and as such is unlawful. The Court can direct these public bodies to stop interfering with your rights or to take direct action to protect them.

Threats to the Human Rights Act

Since 2015 the Government has made successive attempts to repeal or reform the HRA, including through the Independent Human Rights Act Review and subsequent HRA reform public consultation, culminating in Dominic Raab’s Bill of Rights Bill.

Needs Alt Text

Independent Human Rights Act Review

The Independent Human Rights Act Review (IHRAR)  was launched by the UK Government in December 2020. The IHRAR panel reported back a year later following consultation with the public and civil society, broadly acknowledging the wide levels of support for the Human Rights Act, and encouraging further education on and ownership of rights across society.

Needs Alt Text

HRA Reform Public Consultation

Following the Independent Human Rights Act Review, and ignoring a wide swathe of recommendations from that Review, the Government launched a consultation into their proposed Human Rights Act reform. These reforms took aim at many key protections including the application of human rights in deportation cases, the ability of domestic courts to ensure legislation is enacted in a rights-compliant manner, and ease of bringing a human rights case. Our submission to this consultation challenged their claims around the ‘need’ for this reform and centred the concerns we had about the centrality of the HRA to the peace process and Good Friday Agreement in Northern Ireland.

Needs Alt Text

Rights Removal Bill

Despite the widespread opposition to the plans to reform the HRA, this effort culminated in the Bill of Rights Bill, introduced by then Justice Secretary Dominic Raab in June 2022. Known widely as the ‘Rights Removal Bill’, it would’ve repealed the Human Rights Act and replaced with with a much more restrictive, regressive human rights framework.

Case Studies

  • Lorraine Cox used Article 14 in conjunction with Article 8 and Article 1 of Protocol 1 to successfully challenge her exclusion from Personal Independence Payment after being diagnosed with a terminal illness.

    Lorraine Cox Case Study 

    Articles  

    Article 14: Non- discrimination* 
    Article 8: Right to Private and Family Life  
    Article 1 of Protocol 1: Right to Property/Possessions 

    Summary 

    Lorraine Cox used Article 14 in conjunction with Article 8 and Article 1 of Protocol 1 to successfully challenge her exclusion from Personal Independence Payment after being diagnosed with a terminal illness.  

    Details 

    In 2018, following a definitive diagnosis of motor neurone disease, a rapidly progressing and uncurable condition, Lorraine Cox made an application for Personal Independence Payment (PIP) which is a government benefit intended to assist those living with long-term health conditions. 

    Lorraine’s application for PIP was subsequently rejected as she was unable to demonstrate that her death in consequence of the disease could be expected within six months. This was a requirement under Article 87 of the Welfare Reform (NI) Order 2015 for PIP applicants making a claim based on having a terminal illness. 

    In July of 2020, represented and supported by Consortium members the Law Centre NI the PILS (Public Interest Litigation Support) Project, Lorraine successfully challenged this as incompatible with her Convention rights due to unreasonable discrimination between terminally ill individuals who can and cannot evidence the six-month criteria.

    Outcome 

    The Northern Ireland High Court ruled that this breached Article 14 of the European Convention on Human Rights (in conjunction with Article 8 and Article 1 of Protocol 1), on the prohibition of discrimination, as this difference in treatment was “manifestly without reasonable justification”.  

    The High Court decision was appealed in 2021 by the Department for Communities and Department for Work and Pensions to the Court of Appeal, following an announcement by Communities Minister, Deirdre Hargey, that she will extend the terminal illness provision in social security benefits from six months to 12 months. 

    In 2022, because of this work by Lorraine, the Law Centre NI, PILS and the work of other activists from the ‘Scrap Six Months’ Campaign, the six-month rule was removed through the Social Security (Terminal Illness) Act.  

    Lorraine Cox sadly passed on 15th July 2022. 

    *Article 14 ECHR: prohibition of discrimination:  

    “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 

    *Article 8:   

    1.Everyone has the right to respect for his private and family life, his home and his correspondence.  

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

    Article 1 of Protocol No. 1 – Right to property 

    1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.  

    Printer Friendly Version

  • Deborah Morrison used Article 1 in conjunction with Article 14 to successfully challenge her exclusion from PSNI Reserve’s Injury Benefit Regulations as an unmarried parent following the death of her partner.

    Deborah Morrison Case Study 

    Articles  

    Article 14: Non- discrimination* 
    Article 1 of Protocol 1: Right to Property/Possessions* 

    Summary 

    Deborah Morrison used Article 1 in conjunction with Article 14 to successfully challenge her exclusion from PSNI Reserve’s Injury Benefit Regulations as an unmarried parent following the death of her partner.   

    Details 

    In 2008, Deborah Morrison’s partner Kevin, an officer in the Police Service of Northern Ireland who was killed on duty. The Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) Regulations (Northern Ireland) 2006 grants pension pay and gratuities for the spouses and civil partners of deceased officers to ease the financial burden that ensues after such a tragedy. 

    Deborah’s application was refused on the grounds that the couple, who had been together for three and a half years and had been reliant on Kevin’s income at the time of the tragedy while expecting the arrival of their second child, were not married or in a civil partnership at the time of Kevin’s death.   

    Deborah and her lawyers sought to judicially review the decision that she was ineligible for the payments under the 2006 Regulations because she was not a ‘surviving spouse or civil partner of an officer killed in the line of duty’. They argued that this piece of legislation was incompatible with her Convention rights because they treated the unmarried partner of a deceased officer less favorably than they treated an officer’s widow, widower, or bereaved civil partner. 

    Outcome 

    The case reached the High Court, where Judge Treacy ruled that the Regulations were indeed incompatible with Article 1 First Protocol when read in conjunction with Article 14. The judge found that it was unjustifiable to limit these provisions to married couples only, and such limitations were unreasonable. Therefore, it was ruled that Debbie had been unfairly discriminated against because of her martial status.  

    To conclude, because of the rights secured within the Human Rights Act, unmarried partners of PSNI Officers should be entitled to the payments listed in the 2006 Regulations, to prevent discrimination on grounds of an individual’s marital status.  

    *Article 14 ECHR: prohibition of discrimination:  

    “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 

    *Article 1 of Protocol No. 1 – Right to property 

    1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. 

    Printer Friendly Version

  • Siobhan McLaughlin used Article 8 in conjunction with Article 14 to successfully challenge her exclusion from Widowed Parent’s Allowance as an unmarried parent following the death of her partner.

    Siobhan McLaughlin Case Study 

    Articles 

    Article 14: Non- discrimination* 
    Article 8: right to private and family life* 

    Summary  

    Siobhan McLaughlin used Article 8 in conjunction with Article 14 to successfully challenge her exclusion from Widowed Parent’s Allowance as an unmarried parent following the death of her partner.  

    Details 

    In 2014, following the death of her partner John, Siobhan McLaughlin made an application for the Widowed Parent’s Allowance, to assist her in the care of their four children. Siobhan’s application was refused on the grounds that the couple, who had lived together for twenty-three years, were not married or in a civil partnership at the time of John’s death.  

    Under Section 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992, a widowed parent can only claim the allowance if he or she was married, or in a civil partnership, with the deceased. Had they been married; John’s national insurance contributions record would have conferred eligibility to Siobhan as a surviving wife or civil partner.   

    Siobhan applied for judicial review of this decision, on the grounds that her exclusion was incompatible with her convention rights for respect for private and family life and freedom from discrimination. The High Court agreed that this piece of legislation was incompatible with Article 14 when read with Article 8. Following an appeal on this decision by the Department of Communities, Ms McLaughlin made a further appeal to the Supreme Court.  

    Outcome 

    In 2018, the UK Supreme Court declared that s39A was indeed incompatible with Article 14 of the ECHR, when read in conjunction with Article 8 as it was Siobhan’s children that had been unlawfully discriminated against. The judgment explained that parents are under the same financial obligations with regards to the upkeep of their children whether they are married, or cohabitating. Further, there is no sound justification to exclude Ms McLaughlin from the benefit, when its sole purpose is to alleviate the financial burdens that result from the death of a parent (paras 69-72).  

    Fortunately, Siobhan was able to rely on her Convention rights to challenge this piece of legislation. In January 2023 MPs voted for the Bereavement Benefits (Remedial) Order 2022 to extend bereavement benefits to unmarried parents following the death of a partner. This will impact an estimated 1,800 families a year and will also retrospectively make payments to an estimated 21,000 families who have been denied since the UK Supreme Court judgement in 2018. There can be no doubt that the Convention rights, contained within the Human Rights Act 1998 will continue to assist other bereaved parents and partners who are at odds with discriminatory law.   

    *Article 14 of the Convention: Non-discrimination 

    The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.  

    *Article 8: Right to private and family life* 

    1.Everyone has the right to respect for his private and family life, his home and his correspondence. 

    2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 

    Printer Friendly Version

Related News

Posts

Swipe for more

Scroll sideways for more

Use your arrow keys for more

Scroll or use arrow keys for more