What the Human Rights Act 1998 does

The Human Rights Act 1998 (HRA) came into force on 2 October 2000.

It brought certain rights and freedoms of the European Convention on Human Rights (ECHR) into UK law. As explained in Practical Law, the ECHR is an international treaty that sets minimum standards for the protection of human rights. The basic human rights of the ECHR (also referred to as the substantive rights) are set out in the HRA and include:

  • right to life;
  • freedom from torture and inhuman or degrading treatment;
  • right to a fair trial; and
  • freedom of expression.

The HRA makes it unlawful for a public body to act incompatibly with ECHR rights. It also enables UK courts to hear cases of alleged breaches of these rights. Before the HRA, individuals were required to take their case to the European Court of Human Rights (ECtHR) in Strasbourg.

Wherever possible, UK legislation must be interpreted in a way that is compatible with the ECHR. Public authorities are also required to incorporate these rights into their policies and procedures.

Plans to reform the act

Discussions about reforming the HRA are not new and have developed over time.

The Conservative Party raised the issue in 2006 when David Cameron, the then Leader of the Opposition, raised concerns about the impact that the HRA was having on fighting crime and terrorism, as well as protecting freedom.

Several years later, the Conservative Party 2010 manifesto included a pledge to replace the HRA with a UK bill of rights. However, this legislation did not make it into the coalition agreement.

In 2019, the Conservative Party 2019 manifesto included a commitment to update the HRA and administrative law and look at the balance between the rights of individuals, national security and effective government in the UK.

The Government launched an independent review into the HRA in December 2020. A panel chaired by Peter Gross, a previous Lord Justice of Appeal, considered how the HRA was working in practice and whether changes were needed. The panel’s final report included a package of reforms to the operation of the HRA, amongst other things. The chair said the recommendations aimed to put the UK’s common law and case law “centre stage”.

Following this independent review, the Government announced its latest HRA reform plans in a consultation published by the Ministry of Justice on 14 December 2021. It proposes replacing the HRA with a bill of rights that it states would strike a balance between individuals’ rights, personal responsibility, and the wider public interest. Aims for the bill of rights were set out in the consultation document and include:

  • retaining all substantive rights under the ECHR and HRA, with some rights (such as freedom of expression) being strengthened, and others (such as the right to trial by jury) being added;
  • enabling UK courts to apply human rights in a UK context, taking account of UK common law traditions and judicial practice as an additional consideration to the case law of the ECtHR;
  • providing clarity of certain rights such as the right for private and family life;
  • introducing a permission stage for human rights claims to ensure “spurious cases” do not undermine public confidence in human rights; and
  • ensuring UK courts are not required to alter or interpret legislation that is contrary to Parliament’s “clearly expressed democratic will”.

The Government said the reforms would help to “reverse the mission creep” of human rights laws being increasingly used for a wider range of purposes. However, it argued that the UK would remain faithful to the basic principles of human rights. It also said the UK would remain a party to the ECHR and continue to respect its international obligations to uphold human rights and democracy across the world.

The consultation is scheduled to close on 8 March 2022 and a response will be published.

Views on reform

Reform of the HRA continues to be a polarising issue between parliamentarians, political parties, academics, the judiciary, and human rights organisations, amongst many others.

Several reasons have been given by those who support HRA reform. One reason relates to the HRA’s requirement for domestic courts to follow ECtHR case law. As explained in the Law Society Gazette, some believe that UK courts should have the final say on the application of human rights in the UK context, with the UK Supreme Court judges becoming the ultimate judicial arbiters.

Another reason is due to an increased use of human rights legislation for a wider range of issues, the Government states. During a House of Commons debate on human rights legislation that took place on 14 December 2021, the Secretary of State for Justice, Dominic Raab, said that the Government hoped a bill of rights would help to “prevent misuse and distortion” of those rights.

In contrast, there are those who oppose HRA reform. Some argue that the act does not constrain domestic courts and is successful in maintaining parliamentary sovereignty. In June 2021, the Joint Committee on Human Rights (JCHR) inquiry report into the Government’s HRA review said that amending the HRA “would be a huge risk” to the UK’s constitutional settlement and the enforcement of rights.

Others have questioned the Government’s focus on HRA reform. For instance in December 2021, the Shadow Justice Secretary, Steve Reed, said that the Labour Party would oppose the Government’s latest reform proposals of the HRA. Mr Reed accused the Government’s focus of being misplaced, arguing that ministers should concentrate on addressing “failures” in the criminal justice system instead of making reforms to the HRA.

The Government maintains that HRA reform is required to ensure that the act “meets the needs of the society it serves”.

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Cover image by Sang Hyun Cho on Pixabay.