Alexander Harris Solicitors

An Introduction to the Human Rights Acts 1998

When will the Human Rights Act come into effect?

The Human Rights Act 1998 (HRA) received Royal Assent on the 10th November 1998. The main provisions will come into force on the 2nd October 2000. After the 2nd October 2000, a person may complaint of an unlawful act occurring before the 2nd October 2000. Before October 2000, convention on Human Rights (ECHR) may be used as follows :

as an aid to the construction of legislation where there is ambiguity.
to assist judicial discretion.
to establish the scope of the common law.

What is the effect of the Human Rights Act?

The purpose of the RHA is to, "give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights". Strictly speaking, the convention is not, "incorporated" into English Law.

What are the main provisions of the Human Rights Act?

The core sections of the Human Rights Act are :

SECTION 2

A Court or a Tribunal determining a question which has arisen in connection with a Convention right must take into account any judgement or decision of the European Court of Human Rights (ECthr) or the Commission of Human Rights.

SECTION 3

So far as it is possible to do so, all legislation must, be interpreted so as to be compatible with convention rights.

This means that the United Kingdom Courts must strive to find a construction consistent with the intentions of Parliament and the wording of legislation which is nearest to the Convention rights. Courts should proceed on the basis that Parliament is deemed to have intended its statutes to be compatible with the Convention to which the UK is bound. The intention underlying Section 3(I) was expressed by the Lord Chancellor in 1998 as follows:

We want the Courts to strive to find an interpretation of the legislation which is consistent with the Convention rights and as far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them.

SECTION 4

Where it is not possible to interpret primary legislation so as to be compatible, the Courts have no power to strike down the legislation, the higher Courts have the power to make a, "declaration of incompatibility". Such a declaration does not affect the validity, continuing operation or enforcement provision in respect of which it is made. Nor does it bind the parties to the proceedings in which it is made. However, it is intended to operate as a clear signal to Parliament that an incompatibility has been found. The Government envisages that a declaration of incompatibility will, "almost certainly" prompt legislative change. It ought to be pointed out, that a declaration of incompatibility is a discretionary remedy. However the Government has made its intentions clear that the Courts should generally make declarations of incompatibility when they find an Act to be incompatible with conventions.

Where it is not possible so to interpret subordinate legislation the Court has the power to disapply it.

When new legislation is introduced to into Parliament for a second reading, the Minister must make a "statement of compatibility".

If a Court is considering whether or not to make a declaration of incompatibility, the Crown has to be notified. An application can be made by a Minister or a person appointed by him to appeal to the House of Lords against any declaration of incompatibility.

SECTION 6

It is unlawful for a public authority to act in a way which is incompatible with a Convention right, a Court is included in the definition of, "public authority".

SECTION 7 & 8

Individuals who believe that their Convention rights have been infringed by a Public Authority may rely on their rights as the Defendants in Criminal or Civil Proceedings.

Who can bring an Application under the Human Rights Act?

The only person who is, or who would be a, "victim" of an action by a public authority which is incompatible with the Convention can bring proceedings or rely on the Convention right or rights concerned. The HRA states that a person is a, "victim" only if he would be a victim for the purpose of Article 34 of the Convention. The meaning of a, "victim" is not defined in Article 34 of the Convention but this is probably an area where they will developing Case Law.

Which Public Authorities are affected by the Human Rights Act?

The Act does not also define, "public authority". Section 6(3) of HRA especially includes Courts and Tribunals and, "any person certain of whose functions are functions of a public nature" and expressly excludes both Houses of Parliament and any person exercising functions in connection with proceedings in Parliament.

When must proceedings under the Human Rights Act be brought?

Proceedings under the Human Rights Act must be brought before the end of one year from the date when the Act complained of took place but there is a discretion to extend time if the Court considers it just and equitable having regard to all the circumstances. Where, however, the proceedings under the HRA are brought in the form of an application for a Judicial Review (i.e a challenge at the High Court of a decision or of a failure to act by a public body), the three month time limit for such applications will be preserved.

What relief is available under the Human Rights Act?

Damages may be awarded for the unlawful acts of the public authority in breach of Convention rights under the Act. The Act however states that no award of damages is to be made unless a Court is satisfied that an award is necessary to afford just satisfaction.

The Act provides that a Court must, "have regard to" the principles applied by the Strasbourg Court under Article 41 when determining whether, and how much should be awarded in damages.

Are there any special provision of the Human Rights Act?

Sections 12 and 13 of the HRA make special provision for freedom of expression and religion. Added is late amendments to the Act.

The Main Articles of the European Convention on Human Rights

- HOW DO THEY AFFECT US?

Article 2: Right to life
It is a positive obligation to protect life, as well as a negative duty not to take life.
Article 3: Prohibition of torture and cruel, in human and degrading treatment
This article may be relevant in certain criminal sentences which are excessive. Medical care would come within this Article.
Article 4: Prohibition of slavery and enforced labour
May have some effect on sentencing for criminal offences.
Article 5: Right to liberty and security of the person
Would certainly be relevant in the detention of those under the Mental Health Act.
Article 6: Right to a fair trial
This covers not only events at Court, but it also gives a right of access to a Court.
Article 7: No punishment without lawful authority
Article 8: Right to privacy and family life, home and correspondence
Article 9: Freedom of thought, conscience and religion
Family cases may occur under this article or perhaps the right to refuse treatment on the basis of religion.
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
This would be relevant in employment, occupational professional organisations for instance the right to join a Union.
Article 12: The right to marry
Article 13: Effective remedy
This Article provides that everyone whose rights and freedoms are covered by the Convention shall have an effective remedy before a National Authority if their rights are violated.
Article 14: Prohibition of discrimination
There is a list of prohibited grounds of discrimination in the Convention which includes sex, race, colour, language etc... but the list is not exhaustive.

How does the Human Rights Act affect Mental Health Law in England and Wales?

We are likely to see within five years a new Mental Health Act plus a complete overhaul of the Mental Health Review Tribunal system which scrutinises the detention of those detained under the Mental Health Act. Renewed Legislation and Mental Health Review Tribunal Procedure will certainly need to be compatible with the ECHR. Currently, there are a number of matters which are potentially a breach of the ECHR :

There is a higher standard to attain in an attempt to be discharged off the Mental Health Act but then exists the criteria for admission under the Act.
The right of informal patients who are considered to be mentally incapable of consenting to admission and who are kept in hospital under the common law of necessity. This may be in breach of the Article of Right to liberty.
Integral to Article 5 on the Right to liberty is a regular review of detention but one should note that the Tribunal Procedure does not necessarily offer rights for a Mental Health Review Tribunal in the first six months of a Section 37 Hospital Order.
I have no doubt that there will be many cases surrounding mental health brought under the Human Rights Act and we cannot underestimate the impact that it will have on our legal system and on the rights of the mentally ill.

For more information on the European Court of Human Rights their website is available at http://194.250.50.201.

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