Background to the Human Rights Act 1998

The Act contains the rights originally listed in the European Convention on Human Rights (ECHR). The ECHR was drafted after the Second World War by the Council of Europe to protect the human rights and political freedoms of the people of Europe.

If the rights contained in the Act are breached, then the complainant can take their case to a UK court, rather than having to apply to the European Court of Human Rights (ECtHR) in Strasbourg. The Act says that the court must take into account any judgment of the ECtHR and this requirement will remain, even after Brexit, as the ECtHR is part of the Council of Europe, not the EU.

Why the Human Rights Act is important

The Act sets out minimum standards expected of public authorities in their treatment of every individual. Not only must their rights be respected, but they are entitled to be treated with dignity.

Any new laws passed by the government must not be in violation of the Act.

Who the Human Rights Act protects

Everyone who resides in the UK is entitled to protection under the Act, including children, those in prison or hospital, the homeless, refugees, those in the armed services and people of every background or orientation.

Who must comply with the Human Rights Act

The Act applies to public authorities and other bodies, which may be public or private, when they are carrying out public functions, including the following:

  • Government departments
  • Local authorities
  • Hospitals and the NHS Service
  • Schools
  • Police and prison officers
  • Immigration officials
  • The court and tribunal system
  • Public prosecutors
  • Ombudsmen

Examples of other bodies which may be acting in a public capacity, and which are therefore also bound by the Act, include:

  • Private hospitals that are providing NHS care
  • Private care homes paid for by the local authority
  • Housing associations providing publicly funded housing
  • Utility companies and public transport providers
  • Private companies employed in publicly funded establishments such as prisons

Rights contained within the Human Rights Act

The Act lists the rights and freedoms to which each person is entitled under numbered articles, as follows:

Article 2: the right to life

As well as prohibiting the ending of a life, public authorities must also take action to protect your life if it is in danger, for instance, the police should come to your aid if they have been told that your life is threatened by someone.

There is also a requirement for an investigation into any death that occurs because a public authority has not protected someone.

Article 3: freedom from torture or inhumane and degrading treatment

This prohibits ill-treatment that causes severe suffering, either mental or physical, as well as anything that is grossly humiliating or undignified. This includes failure of a local authority to protect a child from abuse, neglect by a care home or hospital or deporting someone to a country where they will face a real likelihood of torture or degrading treatment.

Article 4: freedom from slavery and forced labour

No-one may ever be enslaved or made to work and be unable to leave, whether through physical or psychological threat.

The right can never be restricted, but does not extend to work imposed as part of a custodial sentence or as part of normal civilian obligations, such as jury service.

Article 5: the right to liberty and security

You cannot be deprived of your liberty unless it is in accordance with the law, for example if you have been lawfully arrested or given a prison sentence or where you have been detained under the Mental Health Act 1983.

If the correct procedure in respect of any detention is not followed, you can raise a legal challenge.

Article 6: the right to a fair trial

The Act provides that everyone is entitled to access to the court system and has the right to a hearing that is fair, public and decided by an impartial and independent court or tribunal.
This applies to both criminal and civil matters, for instance, you have been charged with a criminal offence or are involved in a family or employment dispute.

If you are unable to afford legal representation, then this may impact your right to a fair trial and you may be entitled to legal aid, public funding to bring or defend a case. While legal aid is not available for every matter, your access to a fair trial must be meaningful and not theoretical.

Article 7: no punishment without law

This prevents you being convicted of a crime that was not a crime at the time you committed the act. It also means that you cannot be given a heavier penalty than the penalty in place at the time of the crime.

Article 8: right to a private and family life

You are entitled to live a private and family life without interference from public authorities. The right to a private life covers aspects such as your appearance, sexual orientation, your relationships with others and your personal data.

The right to a family life means the right to have family relationships and not to be separated from your family members, although deportation may still be ordered if someone only has a precarious right to be in the UK.

Article 9: freedom of thought, belief and religion

Everyone has the right to hold religious and non-religious beliefs, without state interference and the right to choose and change those beliefs.

You are also entitled to show your beliefs, for example by wearing particular clothing or symbols, and you should not to be required to work on a religious holiday. An authority may be able to justify preventing this right, for example preventing you from wearing certain clothing at work, but they would have to demonstrate a good reason for it.

Article 10: freedom of expression

You are entitled to your own opinions, as well as having the right to express them without interference from any public body. This includes the right to political protest and demonstration as well as raising commercial concerns, particularly if they are of public interest.

Public bodies do have some authority to restrict this freedom in the interests of national security or protection of the rights of others.

Article 11: the right to protest and freedom of association

Following on from freedom of expression, the Act provides the right to peaceful (not violent) protest, as well as marches, press conferences and demonstrations. This includes the right to belong to a political party, trade union or other association.

The right can sometimes be limited to protect national security or public safety, prevent disorder or crime or protect the rights of others.

Article 12: the right to marry

You have the right to enter into marriage and have a family, subject to any legal restrictions, such as a minimum age limit and prohibition of marriage to close relatives.

Article 14: protection from discrimination

You are entitled to benefit from all of the rights and freedoms within the Act without discrimination from any public body. This means that you cannot be treated less favourably than someone else in a similar situation and you cannot be disadvantaged by reason of your circumstances, for example, if you are disabled and treated the same as an able-bodied person.

Discrimination can be on a wide range of grounds: age, race, gender, politics, trade union membership or imprisonment.

Article 1 of the First Protocol: right to peaceful enjoyment of your property

The reference to property includes not only a home, but also possessions and financial assets, such as welfare benefits.

A public body can only restrict your peaceful enjoyment if it is lawful and in the public interest to do so, for example, subjecting someone to a compulsory purchase order of their property to enable a larger development to go ahead.

Article 2 of the First Protocol: right to education

No-one may be denied the right to an adequate and appropriate education within an existing educational establishment. The state also has an obligation to respect the right of parents to ensure that their children are taught in in a way that conforms with the family’s religious and philosophical beliefs.

Article 3 of the First Protocol: right to participate in free elections

This requires the government to give you the chance to vote freely, in a secret ballot, in a free election. Legitimate restrictions are allowed, such as an age limit and the requirement of residency.

What you should do if you think your human rights are being infringed

It is important to report human rights abuses. As well as seeking justice for yourself, it will deter those who are guilty of wrongdoing from continuing.

There are time limits for taking legal action, so you should act as soon as possible once you believe your human rights have been infringed. You usually have one year from the date of the breach of your rights, although in some cases the time limit is less. If more than a year has elapsed, you may still be able to bring a case, although you would have to show a good reason for the delay.

The first step is to seek legal advice from an experienced human rights lawyer. They will be able to confirm whether or not you have a case and will also be able to advise you on the likelihood of a legal action being successful.

This would include identifying who is breaching your rights, as actions under the Act can only be taken against public bodies, and specifying which article of the Act has been infringed.

If your rights have been breached by a private body, the courts still have to apply the law in a way that complies with the Act. A legal specialist will be able to advise you on which law you should rely on in court and will put your case together for you. They will know which court you should apply to and will explain to you the possible remedies that you could seek. These are usually financial compensation and/or and an injunction ordering the offending public authority to do or stop doing something.