The Human Rights Act 1998
Prior to 1998, the British constitution contained no positive statement of basic human rights similar to those found in the constitutional provisions of many other liberal democracies. According to the traditional domestic approach, the citizen was possessed of a range of ‘freedoms’ or civil liberties, the principal of these being the freedom of expression, association and assembly and of the person.
Over the many years it has been in operation, the European Court of Human Rights has found that the UK has violated individuals’ human rights in many and varied cases. But, until now, anyone in the UK who claimed that their rights had been breached had no choice but to bring a case to the court in Strasbourg. To all intents and purposes, they were unable to make the argument in the UK courts that their rights had been breached. Taking a case to Strasbourg is a time-consuming and expensive process. For example, it means that someone who believed that they had not been given a fair trial would have to appeal their case all the way through the UK courts, without being able to have their human rights arguments properly addressed, and then go to the Court in Strasbourg, which might take a considerable time to reach a final decision in the case.
Section 2 states that a court considering a question connected with a Convention right must take into account any relevant judgments, decisions, declarations or opinions of the European Court of Human Rights, together with other official decisions and opinions concerning the Convention.
Section 3 of the Human Rights Act 1998 requires the court to interpret, as far as possible, primary and subordinate legislation in a way which is compatible with Convention rights. Thus, in Ghaidan v Godin-Mendoza,2 the House of Lords interpreted the phrase ‘a person who was living with the original tenant as his or her wife or husband’ in the Rent Act 1977 to include a member of a same sex couple in order to...