The preamble to the Human Rights Act 1998 (HRA) describes it as ‘an Act to give greater effect to rights and freedoms guaranteed under the European Convention on Human Rights’ (the Convention). To understand the HRA you need to know something about the history of the Convention.
The Convention was drafted after the Second World War. British lawyers and civil servants were heavily involved in its drafting. The United Kingdom (UK) signed up to the Convention in 1953 and was one of the first countries to do so. In all, 45 countries have now signed up to the Convention including most of the east European, former communist countries and several countries that were once part of the Soviet Union. The countries that have signed up to the Convention make up the Council of Europe. The Council of Europe is quite separate from the European Union.
The Convention is divided into ‘articles’. Articles 2 to 14 set out the rights that are protected by the Convention. Over the years the Convention has been supplemented by a number of protocols that have been agreed by the Council of Europe. Some of the protocols just deal with procedural issues but some guarantee rights in addition to those included in the Convention. The UK has signed up to two of the protocols that guarantee additional rights (the First and Sixth Protocols) but not to the others (the Fourth, Seventh and Twelfth Protocols).
The European Court of Human Rights (ECHR) is the international court set up to interpret and apply the Convention. It is based in Strasbourg, France and is made up of judges nominated by each of the countries that are members of the Council of Europe. Since 1966 people have had the right to bring cases against the British Government in the ECHR. Over the years there have been many cases in which the ECHR has found that the UK has breached the Convention. One reason that there have been so many findings against the British Government is that there was no way that people could get redress for breach of their rights under the Convention in the British courts. This and the fact that taking a case to the ECHR can take several years were major factors in persuading the new Labour Government to pass the HRA shortly after they came to power in 1997. Many people believe that the HRA is one of the major achievements of this government.
Because the Convention is now over 50 years old some of the language that it uses is quite outdated. However, the ECHR has often stressed that the Convention is a ‘living instrument’. This means that as society and attitudes change, the ECHR will change and develop the way in which it interprets the Convention. The ECHR will, however, still tend to follow the precedents set by earlier cases - where it does not it will make it clear why it is not doing so. It is therefore important to look at past decisions of the ECHR. Moreover, the HRA requires the courts in this country to take the ECHR’s past decisions into account when deciding cases under the HRA. The ECHR now posts its decisions on the internet
Article 9: Freedom of Thought, Conscience and Religion1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 9 guarantees that you can think what you want and can hold any religious belief. You cannot be forced to follow a particular religion and cannot be stopped from changing your religion. You should not be indoctrinated by the state.
It also protects the right to practise your religion or beliefs. For the practise of your beliefs to be protected they must be part of a sufficiently coherent philosophical scheme. So beliefs such as veganism and pacifism are protected.
The right to practise your religion or belief is a qualified right. This means that an interference with the right can be justified. The circumstances in which an interference can be justified are similar to those which justify an interference with rights under Article 8. (See above: the section headed ‘A qualified right’ under Article 8).
Article 10, European Convention on Human RightsArticle 10 of the European Convention on Human Rights protects the right to freedom of expression. Before the Human Rights Act 1998 came into force, the right to freedom of expression was a negative one: you were free to express yourself, unless the law otherwise prevented you from doing so. With the incorporation of the European Convention on Human Rights into English and Welsh domestic law, the right to freedom of expression is now expressly guaranteed.
However, the right to freedom of expression in Article 10 is not absolute. Interferences with the right to freedom of expression may be permitted if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, satisfy a pressing social need. The legitimate purposes for which freedom of expression can be limited are:
- National security, territorial integrity or public safety.
- The prevention of disorder or crime.
- The protection of health or morals.
- The protection of the reputation or rights of others.
- The prevention of the disclosure of information received in confidence.
- For maintaining the authority and impartiality of the judiciary.
Article 11: Freedom of Assembly and Association1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.
There are two aspects to Article 11. It protects the right to protest peacefully by holding meetings and demonstrations. This may include a positive obligation to ensure that demonstrators are protected from counter-demonstrators trying to prevent their demonstration. Article 11 also protects the right to form or join a political party or other group or association, and the right to belong to a trade union. However, the right to join a trade union does not extend to police officers, soldiers and some other groups who work for the Government. Article 11 also guarantees the right not to have to join a union.
Article 11 is a qualified right. This means that an interference with the right can be justified. The circumstances in which an interference can be justified are similar to those which justify an interference with rights under Article 8 (See above: the section headed ‘A qualified right’ under Article 8).