To what extent would the protection of human rights in the united kingdom be affected if the human rights act 1998 were abolished?

The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law.

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The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law. There are a number of exceptions but these are few and not problematic. The ECHR followed in the steps of the Universal Declaration of Human Rights made by the General Assembly of the United Nations in 1948 and was signed in 1950. The UK was the first signatory.


The ECHR is therefore not new and came about partly due to the aftermath of the Second World War. However in recent years the work of the European Court of Human Rights has probably grown in importance and its impact has been influential on UK law and the national law of other signatories. The Human Rights Act 1998 is also probably responsible for bringing human rights to the fore in recent times. Although the UK signed the ECHR in 1950 it did not become part of UK law until October 2000 when the Act came into force. This may explain the judicial interest in the ECHR in much the same way that EU law after it became part of out law after the European Communities Act 1972.


Many may be surprised that it was proposed by Sir Winston Churchill and drafted by British lawyers. One of the lawyers who had a hand in drafting the Convention was David Maxwell-Fyfe who had been a prosecutor at the Nurembourg trials of war criminals. The ECHR has as its roots some strong connections to values and beliefs which united Europe in the aftermath of the war and to the experiences of many at the time. How would human rights and freedoms fair if there was an attempt to separate them from significant events in their history? Why? What would be the purpose? Would it be replaced by a Bill of Rights and if so, how would it differ?


The Human Rights Act did not accidentally fall upon the rights incorporated or draft something new and spontaneous but embraced human rights which reflects humanitarian beliefs which reflected common ground. The human rights set out in the ECHR are positive and therefore ongoing and capable of being applied on a day to day basis. The rights are not just something that can be fallen back on as a last or minimal resort the rights have shaped society and how institutions and individuals conduct themselves.


The ECHR was endorsed by the Council of Europe in 1950 which is separate from the European Union. The Council of Europe is made up of 47 different member states so it has wide support in Europe generally, so bearing in mind the ECHR's background and endorsement it is difficult to see a new convention on human rights being able to improve upon the EHCR and one must ask what any repeal of the Human Rights Act and enactment of a Bill of Rights for the UK would be intended to achieve. Surely the question of international recognition would be an issue.


The one of the effects of the Human Rights Act is to make the Convention directly applicable in the UK without the need to seek redress before the European Court of Human Rights in Strasbourg. This is achieved by section 3 of the HRA 1998 which states that so far as possible all legislation must be given effect to so that it is compatible with the Convention. Under Section 2 of the Human Rights Act decisions of the European Court of Human Rights must be taken account of. Section 6 of the Human Rights Act imposes an obligation upon public authorities including the courts to conduct their work in such a way that they are compatible with the ECHR. The protection afforded in the UK by these provisions would be affected should the Human Rights Act be abolished as this would mean that the Conventions rights would not apply directly in the UK and in our courts so that individuals aggrieved by any apparent infringement would have to take their claim to the European Court of Human Rights. This is not an easy prospect and may take years to achieve. The application process acts as an appeal of last resort after all other steps have been taken to achieve justice in the domestic courts. This will be very time consuming in it self taking energy and resources to see the case through the court system.


Such cases have included Austin and others v The United Kingdom (2012) in respect of the police tactic of 'kettling' where no beach of Art 5 was found. In other cases we have been found wanting but have shown that we are big enough and old enough to recognise that we need to change. For example politicians are no longer involved in deciding release dates and minimum sentences. Whole life sentences are not in themselves a breach of the convention but there must be an opportunity fore view. Judges now decide the minimum period a prisoner must serve before they can be considered for parole. The question of prisoners voting rights appear to taking longer to resolve in light of political objections in the UK but such matters probably will be resolved eventually.


How the courts approach cases involved human rights can be illustrated by the recent case of M/s J Smith v Lancashire Teaching Hospitals NHS Foundation Trust and others (2017) where an appeal came before the Court of Appeal last year and the Court of Appeal took the opportunity to demonstrate its willingness to allow an appeal as it was found to be incompatible with Article 14 (Prohibiting discrimination) of the European Convention on Human Rights (the Convention) when read in conjunction with Article 8 of the Convention. The claim related to bereavement payments under the Fatal Accidents Act 1976 as amended.

The Court of Appeal were able to distinguish the case of Burden v UK (2008) in which the ECrtHR rejected the complaint of two unmarried sisters, who had lived together all their lives, that the liability to inheritance tax payable on the death of one of them, which would not be faced by the survivor of a marriage or civil partnership, would violate their rights under Article 14 read with A1P1. The national courts do not have the option of overruling or refusing to apply the law if it proves impossible to interpret it in a way which is compatible with Convention rights. The court, as was the case in Smith, on finding that there is an issue of incompatibility may make a declaration under Section 4 of the human rights Act 1998.

Section 10 provides a fast-track procedure whereby legislation which is not compatible can be amended. This provision enables a Minister to make amendments to put right the offending enactment. This can be achieved by the the use of a remedial order which usually takes the form of a statutory instrument or an emergency order if Parliament is not sitting (R v London North and East Region Mental Health Tribunal (2002) S73 of the Mental Health Act 1983 was found to be incompatible with Arts 5(1) and 5(4) of the ECHR) and a remedial order was made using this fast track procedure.


Section 19 of the Human rights Act requires the government to include a statement that all proposed legislation is compatible with Convention rights, or state that it is not compatible and that the Government intends to proceed with the Bill anyway.


An evaluation of the extent to which the protection of human rights in the UK would be affected if the Human Rights Act 1998 were abolished shows that the the protection will be affected at various levels. At the international treaty level it may be the case that the UK would find it difficult to show that it able to commit to human rights under international conventions and treaties having back tracked on the 1950 European Convention. This may or may not prove to be an embarrassment in the future but it is something that may be levelled at the UK in the future.


Any abolition of the Human rights Act would be at odds with the apparent ability of the judiciary's willingness to confront and deal with human rights issues without the need to refer matters to the European Court of Human Rights. The Supreme Court seem to be particularly confident that they can resolve matters so any abolition of the HRA would appear an over political overreaction rather than a legal problem.


Any resulting increase in the number of cases taken to the European court of Human Rights would present very real practical problems for claimants not least because as mentioned earlier such claims are not easy and take considerable time and expertise to prosecute successfully.


In addition despite any consideration of a replacement there is a strong possibility that in the meantime the abolition would cause a void to bring about problems or the future direction of human rights in the UK. This lack of direction and any benchmark against which to work would cause problems for the judiciary in knowing how they were to resolve matters under our legal system. At present we have the benefit of a strong and independent Supreme Court and judiciary generally as shown by such cases as Commissioner of the Metropolis (Appellant) v DSB and another (2018) (the Worboys case) may be undermined by any such abolition.


Finally any replacement of the Convention and the HRA would inevitably be compared and reviewed as against the rights enshrined in the former Convention. The point has already been made that the Convention came about as a result of international agreement and condemnation after the tragedy and aftermath of the Second World War and the call for international unity. How can any abolition and replacement be seen to be justified and how will they measure up against such a historically significant moment in history?


The resource can be adapted and possible areas for inclusion might include:


  • public confidence;

  • present track record may be harmed by political ideology of 'taking back control';

  • responsible judiciary have shown willingness to apply human rights so better to leave it to our judiciary;


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