Human Rights Act

The Human Rights Act and the Proposed British Bill of Rights.

The Human Rights Act 1998 remains an important part of UK law. It allows people to rely on rights contained in the European Convention on Human Rights before courts and tribunals in the United Kingdom.

Successive governments have considered replacing or reforming the Act. However, the proposed British Bill of Rights did not become law, the Human Rights Act has not been abolished and the UK remains a party to the European Convention on Human Rights.

What Happened to the Proposed British Bill of Rights?

A Conservative government first proposed replacing the Human Rights Act with a British Bill of Rights in 2015.

Several reviews and consultations followed. A Bill of Rights Bill was eventually introduced to Parliament in June 2022. It would have repealed the Human Rights Act and changed how Convention rights could be enforced in UK courts.

The government announced on 27 June 2023 that it would not proceed with the Bill. It was formally withdrawn before completing its parliamentary stages and did not become law.

What Does the Human Rights Act Do?

The Human Rights Act gives further effect in UK law to most of the rights contained in the European Convention on Human Rights.

These rights include:

• The right to life
• Protection from torture and inhuman or degrading treatment
• Protection from slavery and forced labour
• The right to liberty and security
• The right to a fair trial
• Protection from retrospective criminal punishment
• Respect for private and family life, the home and correspondence
• Freedom of thought, conscience and religion
• Freedom of expression
• Freedom of assembly and association
• The right to marry
• Protection from discrimination in the enjoyment of Convention rights
• Protection of property
• The right to education
• The right to free elections

Some rights are absolute and cannot be restricted, such as the prohibition of torture. Other rights are qualified and may be restricted where the interference is lawful, pursues a legitimate aim and is necessary and proportionate.

Who Must Comply With the Act?

It is generally unlawful for a public authority to act incompatibly with a Convention right unless primary legislation requires it to act in that way.

Public authorities can include:

• Government departments
• Local authorities
• The police
• Prisons
• Courts and tribunals
• NHS bodies
• Immigration authorities
• Schools and educational authorities
• Other organisations carrying out public functions

Whether an organisation is carrying out a public function can depend on the particular activity involved. A private company may therefore be subject to the Act when performing certain public services, even though its ordinary commercial activities are private.

Does the Act Apply Between Private Individuals?

The Human Rights Act does not generally create a separate human rights claim against every private individual or business.

However, courts and tribunals are themselves public authorities and must apply existing law compatibly with Convention rights where possible. Human rights principles can therefore influence disputes involving privacy, freedom of expression, employment, housing and family relationships between private parties.

Other legislation, including the Equality Act 2010, data protection law and laws protecting privacy and confidentiality, may also provide relevant rights and remedies.

Can UK Courts Overrule Parliament?

The Human Rights Act does not give UK courts a general power to strike down an Act of Parliament.

Courts must interpret legislation compatibly with Convention rights so far as it is possible to do so.

If a compatible interpretation is not possible, certain senior courts may issue a declaration of incompatibility.

A declaration does not cancel the legislation or make it unenforceable. Parliament decides whether and how the law should be amended.

This arrangement preserves parliamentary sovereignty while allowing senior courts to identify legislation that conflicts with protected rights.

What Is a Remedial Order?

Where legislation has been declared incompatible with a Convention right, the government may use a remedial order to amend the law.

A remedial order is subject to parliamentary procedures. It is not an automatic consequence of every declaration of incompatibility.

Parliament can also choose to amend the law through ordinary primary legislation.

Must UK Courts Follow Strasbourg Decisions?

UK courts must take relevant judgments and decisions of the European Court of Human Rights into account.

They are not required to follow every Strasbourg judgment automatically regardless of its facts or legal context.

However, decisions of the European Court can carry considerable authority, particularly where they concern established principles directly relevant to UK law.

Is Strasbourg Part of the European Union?

No. The European Convention on Human Rights and the European Court of Human Rights form part of the Council of Europe system, not the European Union.

The Council of Europe is a separate international organisation. The UK was closely involved in developing the Convention and remains a party to it.

The UK's departure from the European Union did not remove it from the European Convention or prevent people from applying to the European Court of Human Rights.

Can Someone Apply Directly to the European Court?

A person cannot usually take a case directly to the European Court of Human Rights without first using the available remedies in the UK.

An application to Strasbourg may be possible after the domestic process has been exhausted where the applicant claims that the UK has breached a Convention right.

The application must normally be made within four months of the final domestic decision.

The Court is not a general appeal court for every disputed UK judgment. It does not normally reconsider findings of fact or alleged errors of domestic law unless a Convention right is engaged.

Does the European Court Make UK Laws?

The European Court interprets and applies the Convention in cases brought before it.

Where it finds that the UK has breached a protected right, the UK is required under international law to comply with the final judgment.

The Court does not normally rewrite Acts of Parliament. The UK government and Parliament decide what domestic measures are required to remedy the breach and prevent it recurring.

Those measures might include changing legislation, reconsidering a decision, paying compensation or altering an administrative practice.

Interim Measures

In exceptional cases, the European Court may indicate an urgent interim measure while it considers an application.

This usually occurs where there is an imminent risk of irreparable harm, such as a real risk of death, torture or inhuman treatment.

Interim measures are not issued merely because an applicant disagrees with a domestic decision. They are reserved for limited and urgent circumstances.

Prisoner Voting Rights

The right of prisoners to vote became one of the most politically controversial human rights issues in the UK.

The European Court did not rule that every prisoner must be permitted to vote without restriction. Its concern was the broad and automatic ban applying to convicted prisoners while detained.

The UK subsequently introduced limited administrative changes. Certain prisoners released temporarily and some offenders serving sentences in the community may vote, but most convicted prisoners detained in prison remain unable to do so.

Human Rights and Deportation

Human rights law can affect decisions to deport foreign nationals. Still, it does not provide an automatic right to remain in the UK.

Deportation may be prohibited where there are substantial grounds for believing that the person would face a real risk of torture or inhuman or degrading treatment. Protection from that treatment is absolute.

Claims may also involve the right to respect for private and family life. In those cases, courts may consider:

• The seriousness of any criminal offence
• The person's immigration history
• The strength of their family relationships
• The effect on a spouse, partner or children
• The best interests of any affected child
• The person's length of residence and integration in the UK
• The public interest in immigration control and preventing crime

The outcome depends on a proportionality assessment under the applicable legislation and individual circumstances.

Human Rights and National Security

Convention rights do not prevent the government from taking lawful action to protect national security, prevent terrorism or investigate serious crime.

However, surveillance, detention and restrictions on movement or expression must have a proper legal basis and comply with the requirements applying to the particular right.

Some rights permit proportionate restrictions for national-security purposes. Others, including the prohibition of torture, cannot be balanced against national-security considerations.

Human Rights and the Police

The Human Rights Act can apply to police decisions involving arrest, detention, the use of force, surveillance, protest, investigation and the protection of vulnerable people.

The police may have positive obligations to take reasonable steps to protect life or prevent serious ill-treatment where they know, or ought to know, of a real and immediate risk.

The Act does not require the police to prevent every crime or guarantee that every investigation will result in prosecution.

Human Rights in Healthcare

Human rights may be relevant to decisions about medical treatment, mental capacity, detention under mental health legislation, end-of-life care and safeguarding.

Issues may include:

• Protection of life
• Freedom from inhuman or degrading treatment
• Respect for personal autonomy and family life
• Liberty and unlawful detention
• Discrimination
• Access to a fair decision-making process

Human rights law does not create an unlimited right to every form of treatment. Decisions may depend on clinical judgment, resources, statutory duties and the proportionality of the interference.

Human Rights and Privacy

Article 8 protects private and family life, the home and correspondence.

It can apply to:

• Personal information and medical records
• Surveillance and communications data
• Family relationships
• Personal identity
• Physical and psychological integrity
• Searches of homes and property
• Some environmental matters affecting the home

Article 8 is a qualified right. Public authorities may interfere where the action is lawful, necessary and proportionate for a legitimate purpose such as preventing crime, protecting health or safeguarding the rights of others.

Freedom of Expression

Article 10 protects freedom of expression, including the right to receive and communicate information and opinions.

The protection applies to speech that may offend, shock or disturb as well as views that are widely accepted.

It is not an unlimited right. Restrictions may be justified to protect national security, public safety, health, reputation, confidential information or the rights of others.

Courts may need to balance freedom of expression against privacy, data protection, public order or the right to a fair trial.

Freedom of Religion and Belief

Article 9 protects freedom of thought, conscience and religion.

The internal freedom to hold or change a belief is strongly protected. The public expression or manifestation of a religion or belief may be restricted where the legal tests are met.

Separate protection may also be available under the Equality Act 2010 where someone experiences discrimination because of religion or belief.

Why Is the Human Rights Act Controversial?

Supporters argue that the Act allows people to enforce fundamental rights in UK courts without first taking a case to Strasbourg.

It has been used in cases involving patient safety, domestic abuse, unlawful detention, privacy, discrimination, child protection and failures by public authorities to protect life.

Critics argue that the Act gives courts too much influence over political decisions, places excessive weight on Strasbourg judgments or allows weak claims to delay immigration and deportation decisions.

Much of the disagreement concerns how competing rights and public interests should be balanced rather than whether basic rights should exist.

Would Repealing the Act End Convention Rights?

Not necessarily. Repealing the Human Rights Act would not, by itself, withdraw the UK from the European Convention on Human Rights.

Unless the UK also left the Convention, people could continue to apply to the European Court after exhausting their domestic remedies.

Removing the Human Rights Act without leaving the Convention could therefore make Convention rights harder to enforce directly in UK courts while leaving the UK's international obligations in place.

Can Damages Be Awarded?

A court may award damages where it finds that a public authority has acted unlawfully under the Human Rights Act, but compensation is not automatic.

The court must consider whether an award is necessary to provide just satisfaction and may take account of other remedies or compensation already available.

Possible remedies can also include:

• A declaration
• An injunction
• Quashing a public authority's decision
• Requiring a decision to be reconsidered
• Excluding unlawfully obtained evidence in an appropriate case

Who Can Bring a Claim?

A person normally needs to be a victim of the alleged unlawful Act to bring proceedings under the Human Rights Act.

This usually means that the person must be directly affected rather than merely disagreeing with a policy or decision.

Organisations may sometimes bring claims where their own Convention rights are engaged, but the Act does not permit general public-interest challenges by people who are not victims.

Time Limits for Human Rights Claims

Proceedings under the Human Rights Act must normally be started within one year of the Act complained about.

A court may allow a longer period where it considers this equitable in the circumstances, but an extension should not be assumed.

Other and often shorter time limits may apply where the claim is brought through judicial review, an immigration appeal, an employment tribunal or another statutory procedure.

Judicial review claims must generally be brought promptly and, in most cases, within three months. Specialist advice should therefore be obtained without delay.

Legal Aid

Legal aid may be available for some cases involving public authorities, detention, community care, mental health, housing, immigration or discrimination.

Eligibility depends on the type and merits of the case and the applicant's financial circumstances.

Legal aid is not available for every dispute raising a human rights argument. A solicitor with an appropriate legal aid contract can advise whether the case falls within scope.

The Current Position

The Human Rights Act 1998 remains in force.

The proposed Bill of Rights was withdrawn in 2023 and did not become law. The UK also remains a party to the European Convention on Human Rights.

Public authorities must continue to act compatibly with Convention rights unless primary legislation requires otherwise. Individuals may bring proceedings in UK courts where they are victims of unlawful action by a public authority.

Human rights law remains politically debated, and legislation can affect how particular rights operate. Current advice should therefore be obtained where a particular policy, decision or public authority is involved.

Getting Legal Advice

A solicitor specialising in public law, civil liberties, immigration, criminal law, healthcare, housing or discrimination can advise where a public authority may have breached a protected right.

Claims under the Human Rights Act are subject to legal tests and strict time limits. Anyone considering proceedings should obtain advice promptly and should not rely solely on making a complaint to the authority concerned.

Important Information

Solicitors.com is not a firm of solicitors. This article is provided for general information only and does not constitute legal advice. Human rights law, court procedures and government policy may change, and their application will depend on the individual circumstances. You should seek advice from a suitably qualified solicitor before taking or refraining from legal action.

Feedback

If you believe this page contains an error or requires updating, please get in touch with us. We welcome amendments that help keep our legal information accurate and useful.