Profile: The Human Rights Act

While supporters of the act say it protects the innocent, makes it safer to be gay and shields women from domestic violence, opponents believe it is “political correctness gone mad”.

Tories have campaigned against it for years with Michael Howard claiming in 2005 that “the time had come to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and culture of compensation running riot in Britain today”.

He warned that the “politically correct regime ushered in by Labour’s enthusiastic adoption of human rights legislation has turned the age-old principle of fairness on its head”.

Hawks in the Labour Party have also complained about it, with former Home Secretary John Reid arguing it was hampering the fight against global terrorism.

However the act does not affect parliamentary sovereignty as it cannot prevent the government from bringing forward new legislation or policies, including those that infringe human rights.

It is the same in the United States where the Bill of Rights didn’t prevent the establishment of internment at Guantanamo Bay. It is only after laws have been enacted that the courts can turn to interpreting them.

If they do find legislation to be incompatible with human rights they can then make a declaration of incompatibility.

The HRA acts as a check on executive and legislative power after its exercise.

MYTH

IT’S ironic to consider that this Human Rights Act which came into force in the UK in 2000 was instigated way back in 1950 by a committee chaired by Conservative MP Sir David Maxwell-Fyfe. In complete contradiction to the myth pedalled by some politicians and the right-wing media, the UK Human Rights Act (1998) has nothing to do with the European Union, with its origins pre-dating the EU by decades.

What the act does is incorporate, however, is the European Convention on Human Rights into UK law.

This convention was drawn up after the horrors of World War Two and the UK was a founding signatory.

Its courts are completely separate from the EU, although ratification of the convention is obligatory for EU members.

Conversely, membership of the EU is not necessary for membership of the convention so countries such as Turkey and Russia are signatories, with Belarus being the only country in Europe which is not a member.

The convention does not set the law in any of the 47 signatory countries.

All it can do is make the judgement that something is “incompatible” and hope the offending country will change its policies to fit the spirit of the ECHR.

COSTLY

THE problem is that bringing a human rights case directly to ECHR courts is both lengthy and costly – so much so that Labour’s manifesto in the 1997 general election pledged to incorporate the convention into domestic law to enable people to argue for their rights in British courts.

Winning the election, the Labour Party actually held good to that part of their manifesto and brought in the act which became law in 2000.

It covers all the rights included in the European Convention including the right to life, the right not to be tortured or subjected to inhumane treatment, the right not to be held as a slave, the right to liberty and security, the right to a fair trial, the right not be retrospectively convicted for a crime, the right to a private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marriage, the right to an effective remedy, the right not to be discriminated against, the right to the peaceful enjoyment of one’s property, and the right to an education.

The Act also imposes a duty upon governments to provide free and fair elections.It all sounds laudable but the Tories want to scrap it and “break the link between British courts and the European Court of Human Rights".

This would mean that people wanting to bring human rights cases under the convention would again have to go to Strasbourg despite all the delays and costs involved.

At the moment, all public bodies such as the police, hospitals, schools and local governments have to comply with the ECHR.

It is not clear what would happen if the Act is abolished.

Even if anyone did manage to win a case in the ECHR courts, the current government has threatened to ignore it and join Belarus - a country regularly criticised by the likes of Human Rights Watch - by refusing to be part of the convention if decisions do not suit them.

CONCERN

CIVIL liberty advocates have expressed concern that the proposed changes would “erode the right to life, the right to privacy, the right to a fair trial, the right to protest and the right to freedom from torture and discrimination”.

Cases where the Act has been used effectively in the UK include a landmark case in 2000 when the army was found to have violated the rights of two British servicemen by dismissing them for being gay.

This led to a change in UK law to allow gay members of the armed forces to be open about their sexuality.

The Act has also been used to keep elderly couples together in the same care home and to house women and children trying to escape domestic violence.

Another notable case was Campbell versus Mirror Group Newspapers Ltd in 2004, when supermodel Naomi Campbell successfully asserted her right to privacy under the Act.

Controversial to this day is the case of Venables and Thompson versus News Group Newspapers in 2001.

This was when the James Bulger murder case tested whether the rights of Venables and Thomson, the convicted killers of Bulger, applied when four newspapers sought to publish their new identities and whereabouts.

The judge, Dame Elizabeth Butler-Sloss, granted permanent global injunctions ordering that the material not be published because of the disastrous consequences such disclosure might have for the former convicts.

It was held that the claimants were uniquely notorious and at risk of serious physical harm and that they would continue to be at risk in future.