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1

What international agreement does the Human Rights Act 1998 incorporate into UK law?

The European Convention on Human Rights.

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2

What legislation created the UK Supreme Court?

The Constitutional Reform Act 2005.

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3

What different ways are there of defining the rule of law?

• Basic ‘thin’ definition of the rule of law is that everyone and everything should be subject to the law.
• There are problems with the ‘thin’ definition from the point of view of a fair, democratic society such as the UK aspires to be. Any action could be in line with the rule of law, provided it was in accordance with whatever the law was at that time, and however that law was passed and enforced.
• ‘Thick’ versions of the rule of law expand the concept, to include ideas such as equality, impartiality, and the following of good practice in the enactment of laws. The existence of an independent judiciary is accepted as vital to sustaining meaningful rule of law in a democracy.
• A universally accepted definition of the rule of law therefore hard to arrive at, and can involve contested subjects such as the extent to which human rights, and what human rights precisely, should come within it.

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4

What impact have the European Convention (ECHR) on Human Rights and the European Union (EU) had on the UK legal system?

• The ECHR was based on UK legal principles, so in this sense did not represent a radical departure.
• From 1966, individuals could bring cases if they felt their rights under the ECHR were being violated. But it was an inconvenient process, with hearings at the European Court of Human Rights, in Strasbourg, France.

The Human Rights Act 1998 incorporated the ECHR into UK law. It also required courts to take into account the decisions of the European Court on Human Rights when reaching decisions.

When the UK was a member of the EU, EU law took precedence over all domestic law, even to the point that courts could disapply an Act of the UK Parliament in as far as it conflicted with EU law.

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What threats exist to human rights and the rule of law in the UK, and what protective mechanisms exist?

• We should not overplay the extent of threats of this nature, though they do nonetheless exist. Parliament has theoretically unlimited law-making powers that it could use, for instance, to target minority groups in an arbitrary, unfair fashion.
• Circumstances may arise in which the executive is particularly concerned about issues such as terrorism that encourage it to take excessively stringent security measures, undermining protections for rights and for adherence to judicial oversight.
• In the UK there is no ‘written’ or codified constitution. Protection for human rights and the rule of law therefore come to a large extent from the same body that could potentially pose a threat to them: the UK Parliament (for discussion of a ‘written’ or codified constitution see Chapter 1).
• Depending on how you define the rule of law and human rights, threats may come about in other ways. Denial of legal aid, for instance, could be seen as an abrogation of the principle of access to justice. Failure to provide satisfactory education or housing for sections of the population could be seen as compromising economic and social rights, for those who recognise their existence. While the courts can play some part in these areas, the main protections are likely to be political, through public campaigns and the intervention of politicians and parties.

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Does the Human Rights Act 1998 pose a fundamental challenge to the traditions of the UK political system?

• The Human Rights Act made it possible for a UK court to review the actions of public authorities, secondary legislation and even Acts of Parliament, on a basis of a defined set of positively defined rights. In this sense it represented a major break from past constitutional practice in the UK.
• The Act has made it possible for courts to read words into an Act of Parliament that were not included in the actual text as produced by Parliament. The ‘declaration of incompatibility’ procedure means that the 1998 Act is not subject to ‘implied repeal’. Both these aspects of the Act represent a dramatic shift of responsibility to the courts.
• But the 1998 Act only incorporated a set of rights that were already provided for under the European Convention on Human Rights, to which the UK had been subject for nearly fifty years by the time the Human Rights Act came fully into force. The rights contained in the Convention were based to a significant extent upon traditional UK liberties.
• The 1998 Act was carefully crafted to ensure that it did not compromise the basic principle that the final say should rest with politicians in the executive and in Parliament.