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2. The main provisions of the Human Rights Act |
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The following gives a brief outline of the provisions of the Human Rights Act. |
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Section 1: Convention rights and power to amend the Human Rights Act |
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Section 1 specifies which of the Convention rights are covered by the Human Rights Act. It also provides the Secretary of State with the power to amend the Human Rights Act to reflect any changes in the UK’s obligations as a result of a "protocol" (section 1 (4)). |
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"Protocols" are additions or amendments to the Convention which may be signed and ratified by parties to the Convention. |
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Section 2: Interpretation of Convention rights |
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Section 2 provides that, when determining a question which has arisen in connection with a Convention right, UK courts must take into account Convention law, which consists of judgements and declarations of the European Court of Human Rights, opinions of the European Commission of Human Rights and decisions of the Committee of Ministers of the Council of Europe. |
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A fundamental principle of interpretation is that of proportionality; a fair balance must be struck between the legitimate interests of the community and the need to protect the rights of the individual. |
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Insofar as the question under consideration by the courts turns on issues relating to the interpretation of the common law, the current status of the Convention remains that generally there is no legal obligation on the courts to have regard to its terms when addressing issues in the common law, except where the issues relate to the interpretation of legislation when, in the cases of ambiguity, the Convention may be taken into account. However, the provisions of section 2 of the Human Rights Act, will require courts and tribunals in considering issues of common law in connection with the Convention rights now to have regard to ECHR and decisions and opinions of the European Court of Human Rights in interpreting the common law. As the court, being a public authority under section 6 of the Human Rights Act, cannot act in a way which is incompatible with a Convention right, it would seem that the common law must be construed and developed in a manner not incompatible with Convention rights. Accordingly, no matter how high the level of a previous judicial approval and no matter how old the authority, an interpretation compatible with Convention rights must prevail. |
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This raises two further questions about the general doctrine of precedent applied in common law. These are: |
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(i) What is the status of decisions of UK courts made before the commencement of the Human Rights Act which are otherwise binding but which (if applied) would lead to results that are incompatible with the Convention rights? and |
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(ii) How does the doctrine of precedent apply to decisions of UK courts made under the Human Rights Act which are superseded by decisions and opinions of the European Court of Human Rights? |
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The answer to question (i) seems to be that the Human Rights Act has generally removed the binding effect of decisions made prior to the commencement of the Human Rights Act in favour of the principle of compatibility. In other words, the UK courts would not be bound by an earlier precedent, made before the Human Rights Act came into force, if that precedent is incompatible with Convention rights. |
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In the case of question (ii), the UK courts are bound under section 2(1) of the Human Rights Act to take decisions and opinions from the European Court of Human Rights into account when determining any question which arises under the Human Rights Act in connection with a Convention right. If the view of the UK court is that failure to apply the decision of the European Court of Human Rights would result in the court acting in a manner incompatible with Convention rights, then it seems to follow that the court should give precedence to the European Court of Human Rights ruling even if that means not following what would otherwise have been a binding domestic precedent. |
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The implications for this on the substantive law of charity, which is largely comprised within a common law framework, would be that the courts when interpreting and applying previous decisions would not be bound by earlier precedents where to do so would be incompatible with a Convention right and would be bound to interpret all precedents in a ECHR compatible way. Given that the Commission’s role, when exercising its functions is largely predictive of and follows decisions of the courts, the Commission would, by virtue of that and by virtue of the fact that it is itself a public authority under section 6 of the Human Rights Act (and therefore it would be unlawful for it to act in a way which was not compatible with a Convention right) be bound to act in the same way. |
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Section 3: Legislation |
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Section 3 provides that all legislation must, as far as it is possible to do so, be read and given effect in a way that is compatible with the Convention rights (section 3(1)). This applies to all legislation whenever enacted. |
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This requirement goes far beyond the previous rule that the Convention was only to be taken into account when resolving any ambiguity in domestic legislation. The practical effect is that judges will not necessarily be bound by previous interpretations of legislation that did not take account of Convention rights. |
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While section 3 applies specifically to legislation, the commencement of the Human Rights Act, as discussed above, will also have an effect on common law generally and in particular where the common law relates to the interpretation of legislation. |
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The practical effect of this is that common law, both generally and in relation to interpretation of legislation, must be given effect in a way compatible with Convention rights. |
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Sections 4 and 5: Declarations of incompatibility |
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Section 4 allows the higher courts, including for example the House of Lords, the Judicial Committee of the Privy Council, the High Court and the Court of Appeal, to make a "declaration of incompatibility" where they find that primary legislation is incompatible with a Convention right. Such a declaration can only be made in the course of proceedings in which the court determines whether a provision is compatible. There is no right to institute proceedings solely for the purpose of obtaining such a declaration. Where a declaration is made the continuing validity and enforcement of that legislation is not affected. |
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Section 5 states that when a court is considering making a declaration of incompatibility, the Crown is entitled to notice and to be joined as a party to the proceedings. This will enable a Minister to provide the court with information which may be relevant to the issue in question. |
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Section 6: Public authorities to act compatibly with the Convention rights |
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Section 6 provides a wide definition of a "public authority" for the purposes of the Human Rights Act. The definition includes the courts, tribunals and any persons whose functions are functions of a public nature (section 6 (3)). |
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A person or organisation is not a public authority if the nature of its acts is private. In the case of bodies, such as the privatised utilities or some charities, which perform some public and some private functions, then the provisions of the Human Rights Act will apply to their public functions only. Guidance on what is a public authority for the purposes of the Human Rights Act can be found in OG 71 B3. |
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Section 6 also states that it is unlawful for public authorities to act in a manner which is incompatible with the rights and freedoms guaranteed by the Convention. This does not apply if the public authority could not have acted differently because of primary legislation or inevitably incompatible secondary legislation. An "act" in this sense includes a failure to act but it does not include a failure to introduce legislation, make primary legislation or remedial orders. |
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This is one of the cornerstones of the Human Rights Act. It does not expose public authorities to criminal prosecution but it does make them liable to the remedies available in the courts. |
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It is accepted that the Charity Commission is a public authority within the meaning of this section. Accordingly, both in its consideration of the substantive law of charity and in the way it discharges its functions generally, the Commission must act in a way which is compatible with Convention rights. |
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Section 7: Proceedings under the Human Rights Act |
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Section 7 provides that a person who is a "victim" of an act of a public authority made unlawful by the Human Rights Act may rely on Convention rights in legal proceedings in the appropriate court or tribunal or can institute separate proceedings. Separate proceedings must be brought within one year (or less) of the date on which the act complained of took place (or after a longer period if the court or tribunal judges consider that to be fair under the circumstances). |
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Shorter time periods may also apply dependant upon the nature of the proceedings in which the human rights issue is being raised. For example, if proceedings are to be brought by judicial review, then there is a shorter time limit of three months that would apply. However, if a person were out of time for bringing judicial review proceedings then they may be able to consider taking separate proceedings for a breach of human rights (not using the judicial review process) within the twelve-month period. |
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"Person" is not defined in the Human Rights Act but the term includes individuals and groups of individuals, whether corporate or unincorporated, but only if they are an actual or potential victim of the unlawful act. It includes a spouse or close relative or personal representative of the victim, who may bring a human rights case if the victim is dead or otherwise unable to bring proceedings themselves. It does not apply to a governmental organisation. A pressure group, such as Greenpeace, has also been found not to be a victim. |
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The implication of this for judicial review cases is that, ordinarily, a judicial review case can be brought by anyone with a ‘sufficient’ interest but where a judicial review case is brought alleging a breach of a Convention right the applicant must show that he or she is, or would be, a victim. |
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Section 8: Relief or remedy from the courts |
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Section 8 provides that, in relation to any act of a public authority which the court finds is or would be unlawful it may grant such relief or remedy within its powers as it considers just and appropriate. |
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Damages are restricted to civil proceedings as criminal courts do not have the power to award damages or compensation in respect of Convention violations. However there are other remedies open to criminal courts to grant such as staying proceedings, quashing indictments and excluding evidence. |
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Before damages are awarded the court must be satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made (section 8 (sub sections 3 - 4)). As often happens with decisions of the Court of Human Rights a simple finding that an unlawful act has occurred may be considered a sufficient remedy in all the circumstances. The level of damages awarded by UK courts must be commensurate with the level of damages awarded by the Court of Human Rights. Such awards usually range between £5000-£15,000. |
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Section 9: Challenging acts of courts and tribunals |
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Section 9 specifies the way in which judicial acts can be reviewed and preserves the rule that judges, magistrates, court clerks, tribunal members and officers of the court are immune from legal proceedings in respect of acts done in the performance of their functions. |
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However, the immunity provided by section 9 does not apply to the Charity Commissioners, even when taking "quasi-judicial" decisions, because the Charity Commission is not constituted as a court. |
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Section 10: Amending legislation |
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Section 10 provides for Parliament to remedy legislation which is incompatible with Convention rights following a declaration of incompatibility by UK courts or a finding of the European Court of Human Rights. This does not affect the validity or enforcement of the incompatible legislation, but it may trigger a fast-track procedure in Parliament for the incompatibility to be rectified where there are "compelling reasons" to do so (section 10 (2)). |
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Section 11: Other rights and proceedings |
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Section 11 makes it clear that the Human Rights Act does not restrict any existing rights that an individual might have under UK law or his or her right to bring proceedings under existing law. |
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Section 12: Freedom of expression |
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Section 12 contains safeguards concerning court or tribunal orders (particularly injunctions) which might breach the right to freedom of expression. |
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Section 13: Freedom of thought, conscience and religion |
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Section 13 obliges the courts to have particular regard to the importance of the right to freedom of thought, conscience and religion. |
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Although section 13 does not apply specifically to the "quasi-judicial" decisions taken by the Charity Commissioners it is nevertheless important that our decisions pay the same close regard to the principles in section 13 as the courts would do if they were making those decisions. |
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Sections 14-17: Derogations and reservations |
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The Convention rights that are given effect to by the Human Rights Act are subject to any designated derogation. A "derogation" is a reservation that the UK has attached to certain Convention rights. For example, Article 5: right to liberty and security is subject to a UK derogation relating to the situation in Northern Ireland. Sections 14-17 concern the effect of these derogations on the Human Rights Act. |
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Section 18: Court of Human Rights |
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Section 18 makes provision for the appointment of UK judges to the Court of Human Rights. |
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Section 19: Statements of compatibility for new legislation |
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Section 19 makes provision for "statements of compatibility" in respect of all new legislation proceeding through Parliament. |
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When legislation is introduced into either House before a second reading, the Minister responsible must make a written statement either confirming that the provisions of the Bill are compatible with Convention rights or that he or she is unable to make such a statement but wishes Parliament to proceed with the Bill anyway. |
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Section 20: Rules and orders made under the Human Rights Act |
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Section 20 contains technical provisions for the way in which rules and orders are to be made under the Human Rights Act. |
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Section 21: Interpretation |
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Section 21 contains a number of important definitions and other provisions concerning interpretation, including the meaning of primary and subordinate legislation. |
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Section 22: Other miscellaneous matters |
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This section deals with a number of miscellaneous matters, for example that the Act may be cited as the Human Rights Act 1998, that it binds the Crown and that it extends to Northern Ireland. It also ensures that victims can rely on their Convention rights in proceedings brought by a public authority, even if the act in question took place before section 7 (see above) came into force. |
