Introduction to human rights law

‘Human rights’ is a term used to refer to certain fundamental rights and freedoms that are so important that they are given special protection by law. The Convention for the Protection of Human Rights and Fundamental Freedoms, or the European Convention on Human Rights (ECHR), is an international treaty to protect human rights in Europe. The United Kingdom was one of the original parties to the ECHR when it came into effect in 1953. Persons who felt their human rights under the ECHR had been violated could apply to the European Court of Human Rights to have those rights upheld.

See the ECHR on ehcr.coe.int.

Those human rights were incorporated directly into UK law by the Human Rights Act 1998 (the 1998 Act). This means that persons can now assert their human rights directly in the UK courts, rather than having to apply to the European Court of Human Rights.

See the Human Rights Act 1998 on legislation.gov.uk.

The UK has signed up to most, but not all, of the human rights protected under the ECHR. The 1998 Act incorporates into UK law only those rights to which the UK has signed up. Those rights are known as ‘Convention rights’. They are commonly identified by referring to the Article of the Convention in which they appear. They are as follows:

• Right to life (Article 2)
• Right not to be subjected to torture, or inhumane or degrading treatment or punishment (Article 3)
• Right not to be held in slavery or servitude, or required to perform forced or compulsory labour (Article 4)
• Right to liberty and security of person (Article 5)
• Right to a fair trial, and to be presumed innocent until proven guilty (Article 6)
• Right not to be punished except in accordance with the criminal law (Article 7)
• Right to respect for private and family life (Article 8)
• Right to freedom of thought, conscience and religion (Article 9)
• Right to freedom of expression (Article 10)
• Right to freedom of peaceful assembly and freedom of association with others (Article 11)
• Right to marry and to found a family (Article 12)
• Right to freedom from discrimination in enjoyment of the Convention Rights on any ground: these include sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (Article 14)
• Right to peaceful enjoyment of possessions (Article 1, Protocol 1)
• Right to education (Article 2, Protocol 1)
• Right to free elections (Article 3, Protocol 1)
• Right not to be given the death penalty (Article 1, Protocol 13)

The Act imposes a requirement on public authorities to respect and protect these rights in everything that they do. A failure to do so can be challenged in the courts.

Most Convention rights, by their nature, can only belong to human beings. However, this is not true for all of them. In particular, the right to peaceful enjoyment of possessions belongs both to natural persons (human beings) and legal persons (such as companies).

Some Convention rights are absolute (inviolable) – such as the right not to be given the death penalty. Other Convention rights can be overridden in certain circumstances. For example, the right to liberty and security of person is not breached when someone is lawfully imprisoned for committing a criminal offence. The right to freedom of expression may be subject to limits in the interests of national security or public safety.

The UK can ‘derogate from’ some, but not all, Convention rights in times of war or other public emergencies. This means to disapply them in specific circumstances. There are no derogations currently in force. However, the UK has used this method in the past to create enhanced powers of arrest and detention of suspected terrorists. It did so in response to the state of emergency existing after the 9/11 terrorist attack in New York.

The 1998 Act makes the Convention rights directly applicable and enforceable in the UK in the following ways.

A court or tribunal deciding on Convention rights must consider any relevant decisions of the European Court of Human Rights.

So far as possible, UK legislation must be read and applied in a way that is compatible with Convention rights. If this is not possible, a court may make a declaration of incompatibility. Following a declaration, any Minister of the Crown may make an order to revise the legislation if they think there are compelling reasons. This would be to make it compatible with Convention rights.

It is unlawful for a public authority to act in a way that is incompatible with Convention rights. This is the case unless wording in primary legislation means it cannot act differently, and unless the public authority has to act in that way to give effect to incompatible legislation.

Any provision in a Senedd Act or Measure that is incompatible with Convention rights is outside the legislative competence of Senedd Cymru. This means that such a provision would be invalid and of no effect. (See section 108A(1) of the Government of Wales Act 2006 and the restriction in section 108A(2)(e) of that Act.)

The Welsh Ministers have no power to make, confirm or approve any subordinate legislation, or to do any other act, so far as it is incompatible with any of the Convention rights. (See section 81 of the Government of Wales Act 2006.) So, in exercising any of their functions, the Welsh Ministers must not breach the Convention rights.

The United Kingdom has ratified several other international human rights instruments. These include:

• the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 
• the United Nations Convention on the Rights of the Child (UNCRC)

In Wales, the UNCRC was embedded into Welsh devolved law by the Rights of Children and Young Persons (Wales) Measure 2011. This Measure provides that the Welsh Ministers, when exercising any of their functions, must have due regard to the following:

• the requirements of Part I of the UNCRC
• articles 1 to 7 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, except article 6(2)
• articles 1 to 10 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography

Among other things, this means the Welsh Ministers must have regard to these rights when creating the Bills they introduce to the Senedd. They must also do so when formulating subordinate legislation.

The Senedd has also enacted provisions requiring due regard to be had to certain international human rights instruments in particular circumstances. An example is the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (see sections 7 and 8 of that Act).