This is an extract of our Human Rights Act 1998 document, which we sell as part of our Constitutional Law Notes collection written by the top tier of Oxford students.
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Human Rights Act 1998 The Pre-HRA situation:
Although there were notions of rights, they were not written down or given legal basis as 'human rights' in any context. Certain rights were laid down in statute, and these remain unchanged by the HRA.
Aside from these, the UK was centred more around a rights-based that liberties-based model of freedom; we had the right to do something in so far as we were not prohibited from it. This was deemed unsatisfactory by many, including Lord Chancellor Lord Irvine who said: "The view that because we have liberty we have no need of human rights must be rejected.".
The liberties model can be criticised because it allows the erosion of rights, drawing no boundary with regards to where the law may not intervene. The HRA was enacted to protect civil liberties, and to give domestic footing to the rights contained within the ECHR.
It is important to note that the HRA does not itself list any rights, rather it gives British voice to the European rights. The ECHR existed before the HRA, but to receive any sort of redress a claim would have to be made in the European Court of Human Rights - under the HRA such claims can be made in British courts instead.
Note that the HRA is enforceable against bodies exercising a public function (see below), and horizontally where there was a pre-existing legal relationship (Ghaidan v Godin-Mendoza). It may also be enforceable where there was a pre-existing common law right, but this is not hugely relevant because the common law right continues to exist (Campbell v MGN). o Theorists have offered interesting approaches to the enforceability of the HRA:
? Buxton says there can be no horizontal effect. This seems fair.
? Wade says that provisions are entirely horizontally effective because the courts are public authorities, so their rulings have to be constituent with convention rights. This is a less plausible explanation.
? Hunt says s.6 only applies to law that were on the books before the HRA because all other law should be compatible by virtue of the declaration of compatibility required for new legislation.
? Phillipson decribes convention rights, in the private sphere, as values rather than entitlements.
Section 1 states that the HRA gives voice convention rights.
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