9.1.2 Human Rights Act 1998 Lecture

A. Introduction

Modern human rights laws originate from agreements made by the international community in the immediate post Second World War years. The Universal Declaration on Human Rights 1948 is the first statement of these rights. These rights were brought into form as a regional instrument within the European Convention on Human Rights and Fundamental Freedoms 1950. The Human Rights Act 1998 illustrated a further commitment to human rights laws within the United Kingdom.

B. What are Human Rights?

Human rights might be considered as a minimum level of protection that should be afforded in law by a government to its citizens. They are inherent to all humans and a manifestation of human dignity and they are inalienable.

C. Human Rights and Parliamentary Sovereignty

If parliament is sovereign and can make any law, how can the government be constrained by human rights principles, which in effect constrain its legal decision making. The two concepts appear to be at odds.

D. The European Convention on Human Rights

The European Convention on Human Rights (ECHR) was ratified by the United Kingdom in 1951. The drafting of the ECHR was a direct result of the movement for co-operation in Western Europe, which in 1949 led to the establishment of the Council of Europe.

The ECHR provides a constraint on the legislative authority of national parliaments, including the Westminster Parliament.

i. The Scope of the ECHR

The ECHR is generally accepted to be first generations or civil and political rights; although over time, the ECtHR has developed the scope of the Convention rights to address important societal issues of the present day.

The scope of the Convention has also been extended by a number of optional protocols, that signatory states are able to sign up to.

ii. The Complaints Procedure

One important feature about the rights contained within the ECHR is that individuals have the right to complain of breaches of the Convention by States parties. The complaints procedure initially comprised of the European Commission of Human Rights and the European Court on Human Rights.

The Eleventh Protocol

The Eleventh Protocol abolished the European Commission of Human Rights and created a full-time court. Although the new court has the same name, it is entirely different with new powers, functions and composition.

The Fourteenth Protocol

The Fourteenth Protocol was introduced as a direct response to the massive workload of the Court which came about as a result of the Council of Europe expansion since 1989.

iii. The Strasbourg Jurisprudence and the UK

From 1975-1990, the ECtHR decided 30 cases involving the UK. The UK were found to be in breach of the Convention in 21 cases.

E. The Human Rights Act 1998

Prior to the introduction of the Human Rights Act 1998 (HRA) human rights principles were contained in common law and in various statutory provisions. International law has had a considerable influence on the development of human rights, and there have also been a number of international institutions which have established multilateral human rights treaties.

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