The Constitution and Human Rights

 

The UK became a signatory of the European Convention on Human Rights (ECHR) in 1951. It was not until 1965 that the UK Government gave UK citizens a right to petition the European Court of Human Rights in the exercise of their rights under the ECHR.

It was only with the enactment of the HRA98 that the ECHR became part of UK domestic law, with UK citizens being permitted to bring proceedings before the domestic courts founded on breaches of human rights.

The Human Rights Act 1998 (HRA98) incorporates the ECHR into UK law in a weak manner and does not allow courts to invalidate legislation if it infringes the ECHR. If a domestic court considers that an Act of Parliament infringes the ECHR, the court can make a declaration of invalidity under section 4 of the HRA98. This does not invalidate the relevant piece of legislation, which will remain in force unless and until it is amended.

Some of the rights that are protected by the ECHR are not absolute. This means that in certain circumstances the state can limit their exercise (limited or qualified rights). This is particularly the case with:

Article 8 -         the right to respect for private and family life

Article 9 -         freedom of thought, conscience and religion

Article 10 -       freedom of expression

Article 11 -       freedom of assembly and association

In addition, all signatories of the ECHR, including the UK, are afforded a margin of appreciation by the European Court of Human Rights, which gives the state a degree of latitude as to how limited rights contained in the ECHR are to be protected.

It is permissible for a state to derogate from some of the rights and freedoms contained in the ECHR. Article 15 provides, however, that derogations can be made only in time of war or another public emergency.

The HRA98 cannot be said to be a full constitution because it does not set out how the different branches of the state should operate. Rather, it sets out the fundamental rights and freedoms of citizens.

The HRA98 is not entrenched, and like any other statute, it can be repealed by an ordinary Act of Parliament.