HR

How successful has the HRA 1998 been to the legal guarantee of citizens fundamental rights and
freedoms in the UK?
Human Rights are an individual’s basic rights that allow them to live a life of equality and fairness, a life
free from discrimination or harassment and fear. These are rights that the state cannot take away from
its citizens. Human Rights are one of the main components of a nation’s constitution, UK however, does
not possess a constitution and its laws stem from various different sources. Because of the UK
constitution being uncodified, HRA is one of the sources that guarantees the protection of Human Rights
in UK. The essay below will discuss the extent to which HRA has been able to serve its purpose and
whether there is a need to repeal the document and replace it with a British Bill of Rights.
Prior to the enactment of HRA, the importance given to Human Rights in the UK is apparent from the
Magna Carta 1215. This document asserted that no one shall be punished until proven guilty for his
breach of law. The common law courts in the UK also played a significant role in upholding human rights.
However, the courts could only go so far to enforce these rights with the lack of a consolidated charter.
To rectify the hardships caused by the lack of a charter, the UK ratified the European Convention on
Human Rights (ECHR) which came into force in 1953. The rights within the ECHR are based upon the
principles included within the UDHR. The ECHR transforms the non-binding declaration of the UDHR into
binding legal principles with an enforcement mechanism in the form of ECtHR. A major problem with this
however was that the international laws under the ECHR were persuasive in nature and not binding and
to enforce the laws under this convention a person would have to travel to Strasbourg. This was not only
inconvenient and impractical but also time-consuming and expensive, which in turn deprived many
people of their rights and justice. The ECHR not being binding the domestic UK courts also showed how
Human Rights were held secondary and Parliamentary supremacy still held a higher status in the UK.
In order to tackle the issues presented by ECHR not being binding in the domestic courts, HRA 1998 was
enacted and s.1 of the Act incorporated ECHR into domestic legislation. Doing so allowed the ordinary
citizens a greater access to justice and protection of various human rights such as right to life (Article 2),
right to liberty (Article 5), right to a fair trial (Article 6) as well as fundamental rights such as freedom of
speech (Article 10) and right to privacy (Article 8).
S.2 of the HRA requires the courts to take into consideration the previous ECtHR judgements when
deciding domestic cases. These judgements could either be considered as binding or persuasive. One of
the main aims of HRA was to ensure that all domestic legislation enacted by the parliament was in
compliance with the ECHR Articles which is why s.3 of the HRA requires that all legislation must be read
in line with the ECHR convention rights as far as possible. Previously inn Rossminister, it was held by the
HOL that when a statue is unambiguous the courts cannot interpret it in line with the ECHR however s.3
of HRA 1998 allowed the courts a very broad power and enabled them to interpret a law in a way that it
is compatible with HRA even if it is unambiguous. (Ghaidan v Mendoza) (R v A). Furthermore, when the
courts come across legislation that has no room for change and hence cannot be read in line with ECHR,
s.4 of the HRA gives the courts the power to issue a declaration of incompatibility (DOI) against such
laws. DOI works as a signal which tells the parliament that the legislation needs amendment. DOI,
however, merely works as a signal and does not affect the validity of the legislation in any way. Although
a DOI is not binding and the parliament does not have to change the law maintaining its supremacy, not
doing so is uncommon because even though its not legally binding, it imposes a severe political burden
on the parliament to change the law.
The primary goal of the Human Rights Act (HRA) was to ensure that public entities adhere to human
rights standards and cultivate a culture of human rights protection. Section 6 of the HRA imposes a legal
obligation on these entities to comply with the European Convention on Human Rights (ECHR)
requirements. If they fail to meet this duty, their actions could be deemed illegal and beyond their
authority, leading to potential judicial review. This duty is extensive, requiring public bodies not only to
avoid violating citizens' human rights but also to prevent others from infringing on these rights (as seen
in the Osman v UK case).
The Human Rights Act (HRA) has been a crucial legal framework safeguarding human rights, with
scholars like Vernon Bogdanor even viewing it as the genesis of a new constitution. However, the HRA
has faced criticism, being accused of serving as a shield for terrorists, criminals, and illegal immigrants.
Unlike the revered U.S. Constitution's Bill of Rights, the HRA lacks widespread popularity among the
public. Furthermore, being just an ordinary Act of Parliament, it can be easily repealed with a simple
majority vote. In response to these criticisms, there has been ongoing debate about implementing a
British Bill of Rights since 2005. This proposed document aims to establish human rights in a more
constitutional manner. Recent momentum for this idea has grown, particularly following a consultative
paper presented by the Ministry of Justice in December 2021, outlining potential reforms to human
rights matters in the UK.

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How successful has the HRA 1998 been to the legal guarantee of citizens fundamental rights and

freedoms in the UK?

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