The UK’s Human Rights Act (1998) and why it needs protecting

Posted on Wednesday, January 29th, 2020

by Debora Singer, January 2020

History of the Human Rights Act

  • In 1948 the United Nations published the Universal Declaration of Human Rights (UDHR).  This was written by our namesake, Monsieur René Cassin, a French Jewish law professor and judge. It aims to protect individuals from human rights abuses by the state.
    • However, there is no mechanism for challenging any breaches of human rights under the UDHR as it does not have a court.
    • In 1950 the Council of Europe, consisting of 47 member states, agreed the European Convention of Human Rights (ECHR).  Winston Churchill and other British politicians were amongst its principal drafters. The rights in the ECHR include many of those in the Declaration, particularly the civil and political rights (rather than the social, economic and cultural rights).  These rights serve as minimum standards of how a state should treat individuals. 
    • In 1951 the United Kingdom was the first state to ratify the ECHR.
    • The difference between the UDHR and the ECHR is that the ECHR has a court: the European Court of Human Rights in Strasbourg set up in 1952.  This means individuals have a mechanism to get justice if their human rights are breached.  They are able to hold their state to account.
    • Some UK cases decided by the European Court of Human Rights resulted in:
  • the end of corporal punishment (1986)
  • gay men and lesbians being allowed to serve in the military (1999)
  • introduction of stronger anti-trafficking legislation (2015)

However, the UK only loses 1% of claims brought against it in the European Court of Human Rights.

Meanwhile, it takes time and money to take a case to the Court in Strasbourg.

Human Rights Act The Convention was incorporated into domestic law in the UK as the Human Rights Act (HRA). This means cases alleging a breach of the HRA can be heard in the UK courts.The HRA received royal assent in 1998 and came into force in 2000.  The HRA was brought in under a Labour Government but all the major political parties voted for it.

Examples of human rights

Right to life (Article 2) Right to liberty (Article 5)
Right to private and family life (Article 8) Right to fair trial (Article 6)
Freedom of political opinion and religion (article 9) Freedom from torture (Article 3)

How does the HRA work?

Mechanism – The HRA places duties on public authorities to protect individuals; Example – Public authorities include local authorities, schools, hospitals, police, prisons, parliament

Mechanism – New laws must be compatible with the HRA; Example – all new laws are scrutinised by the Joint Committee on Human Rights before being passed

Mechanism – Current laws must be amended if they are found by a court to be incompatible with the HRA; Example – When he was 17, Hughes Chang was held in police custody for 12 hours without being able to call his mother. At the High Court he argued that his right to private life was breached as he should have been treated as a child.  The judge agreed and declared the law allowing this incompatible with human rights.  Because of this the Home Secretary had to change the police code. See The Boy who Changed the Law (film)

Mechanism – The HRA provides a framework to balance rights; Example – Using the HRA to determine the balance between the freedom of the press and a celebrity’s right to private life

Mechanism – The HRA is a living instrument so it keeps up to date with current social mores; Example – Equal marriage would not have been considered when the ECHR was written but the Marriage (same sex couples) Act 2013 reflects current thinking

Mechanism – You can raise an issue you are concerned about directly with the public authority; Example – Mr and Mrs Driscoll were in their late 80s when Mr Driscoll went into a care home.  Despite their dependence on each other Mrs Driscoll was not allocated a place in the same home.  After they ran a media campaign, the local authority changed its decision.  See Sunrise, not Sunset (film)

Mechanism – You can take the public authority to court in the UK; Example- The families of the 96 people killed at the Hillsborough football stadium in 1989 used the HRA’s right to life to get a fresh inquest into the deaths in 2016. In 2016, the bedroom tax was found to breach the HRA right to private life and to be free from discrimination for disabled people where one adult spouse is disabled.  They are now allowed a second bedroom.

Threat to HRA

Even before the HRA came in, politicians and the media were describing it as a law to help unpopular people such as asylum seekers, criminals and terrorists.  They have continued to focus on such cases, omitting those that effect ordinary people (and in fact most of society) in their ordinary lives.  The HRA has in fact been used to increase disabled people’s care hours, enable children with learning difficulties to get to school, enable families to stay together and given more say to people with mental health problems. But the HRA is under threat.

Since 2010, the Conservative Party manifesto has included its intention to scrap the HRA and replace it with a Bill of Rights.  The Coalition government of 2015 was unable to do this as the Liberal Democrats would not have agreed.  Since 2015, parliament has been focusing on Brexit. 

In the 2019 elections, the Conservative Party has stated that after Brexit, it will set up a Constitution, Democracy and Rights Commission, which will consider ‘amending’ the Human Rights Act.  What these ‘amendments’ are is still unclear.  However, if the HRA were amended in a way that was not compliant with the European Convention on Human Rights, the UK might have to withdraw from this. 

In the meantime, the other major political parties have all strengthened their commitment to the HRA in their 2019 manifestos.

What’s Jewish about human rights?

  • Everyone has human rights ‘So God created man in His own image; in the image of God He created him; male and female He created them’ (Genesis 1:27)
  • Jews wrote many of our human rights laws e.g. Monsieur René Cassin (UDHR); Hersch Lauterpacht (‘Crimes Against Humanity’); Rafael Lemkin (‘Genocide’)
  • Human rights laws were written in response to the atrocities of World War ll and the Holocaust to prevent what happened to Jews and many others from happening again
  • Human rights reflect Jewish understanding of social justice

Action

  • Educate yourself: research the Human Rights Act.
  • Campaign: Share this briefing to raise awareness of the HRA.  Encourage your friends and colleagues to watch the films.
  • Lobby:  Contact your MP asking them to save the Human Rights Act by voting against any attempts to amend the HRA. 

Where do universal human rights begin? In small places, close to home

Eleanor Roosevelt, Chair of the UN Human Rights Commission, 1958