The Human Rights Act

The Human Rights Act 1998 is an important and wide-ranging law that affects many parts of our lives. This leaflet explains what the Act says and how it works.

Where did the Human Rights Act start?

The roots of the Human Rights Act go back to the Second World War. After the war, the European Convention on Human Rights (often called 'the Convention') was written, setting out important basic human rights. In 2000 the Human Rights Act made the Convention part of British law.

The rights in the Convention are set out as separate 'articles'. Since the Convention was written, new 'protocols' have been added. Most of these protocols deal with procedure, but some of them add new rights to the Convention.

The European Court of Human Rights in Strasbourg was set up to consider cases brought by people who claim that their rights under the Convention have been broken ('breached' in legal terms). In many cases, this court has decided that the British government has breached the Convention. These cases have led to important changes in the law in this country.

Taking a case to the court in Strasbourg takes a long time. In almost all cases you must first take legal action in this country using the Human Rights Act before you take a case to the court in Strasbourg. You can take a case to Strasbourg only if you fail to win your case here under the Human Rights Act.

How does the Human Rights Act work?

Not all the rights in the Convention and its protocols are part of British law. In particular, Articles 1 and 13 and some of the protocols are not included in the Human Rights Act. The rights that have been made part of British law are called the Convention rights. Some of the rights that have been left out may be added later. The Convention rights are very broad, and the Act affects many areas of the law. The Human Rights Act says that, as far as possible the courts should interpret and apply the law in a way which respects or fits in with people's Convention rights.

The Human Rights Act also says that public authorities must respect people's Convention Rights. Public authorities include government departments, the police, local councils and the Benefits Agency. Some organisations are public authorities at some times, but not others. For example, a security company is a public authority when it is working for the Prison Service, but not when it is doing private security work.

Sometimes the rights of different people clash, and the courts will have to find a balance between these rights. For example, an animal rights protester may use the rights to freedom of expression (Article 10) and freedom of assembly (Article 11) to argue that the police (a public authority) should allow them to protest outside the house of a scientist who does animal experiments. The scientist may use the right to respect for their privacy and home (Article 8) to try to persuade the police to stop the protest.

What can I do if I think my rights have been breached?

If you think a public authority has breached your Convention rights (or that it is going to), you can take court proceedings against them. You have to show that you have been affected by what the public authority has done or is going to do.

You can apply for a procedure called a 'judicial review' if:

• you want to challenge a decision made by a public authority; or
• you want the court to order a public authority to do something or stop doing something.

Under judicial review, a judge will look at your case and decide if the public authority has acted illegally. You have to start proceedings quickly, and at the latest within three months of the authority's decision or action you are challenging. It is important to consult a lawyer quickly and discuss the possibility of judicial review if you think that there has been a breach of your rights, because judicial review can be an effective way of challenging a decision or action, and you are more likely to get public funding (legal aid) for it than for a damages claim on its own.

If you just want compensation because your Convention rights have been breached, you can bring a claim for damages. You have to bring the case within a year of your rights being breached.

A court can award you compensation if it finds that your Convention rights have been breached. But the court may choose not to award you compensation if it decides that simply finding that your rights were breached is enough. The compensation that people have received for breaches of their Convention rights has been quite low.

You may also be able to rely on your Convention rights if you are defending yourself in court. This will happen most often in criminal cases, but it may also happen, for example, if you are:

• a council tenant and the council is trying to evict you; or
• an immigrant or asylum seeker facing deportation.

Which cases doesn't the Act cover?

Sometimes a court won't be able to do anything about your rights being breached. The Human Rights Act doesn't allow the courts to overrule an Act of Parliament. If the courts can't interpret or apply a particular Act of Parliament in a way that respects or fits in with people's Convention rights, all they can do is make what's called a 'declaration of incompatibility'. The Government and Parliament then have to decide if the law should be changed. But until or unless that happens, the courts have to apply the law as it is, even though it does not fit in with Convention rights. The courts will not be able to award you any compensation.

If you find yourself in this situation, you could think about applying to the European Court of Human Rights, because the Court in Strasbourg can award compensation.

The Human Rights Act allows people to bring a case only against an organisation that is a public authority. So a person who is employed by, for example, a local council can take proceedings against their employer, but a person who is employed by a private company cannot.

Even so, the Act affects court cases between individuals and private organisations. This is because it changes the way the courts interpret and develop the existing law. The courts are already using Article 8 of the Convention (the right to respect for private and family life) to develop a law of privacy that will affect private individuals and organisations as well as public authorities.