Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) whose Articles spell out the universal human rights that everyone is entitled to enjoy. Schedule 1 to the Act lists the full range of human rights or freedoms which are protected in UK law.

The Tribunal was established in order to ensure that the United Kingdom complies with Article 13 of the ECHR. This provides that everyone whose rights and freedoms are violated "… shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

Most rights recognised by the HRA and ECHR, such as the right to life and the prohibitions on torture or inhuman or degrading treatment, are absolute. This means that there are no conditions or mitigations by which public authorities can make them lawful.

At one time Article 6 – the Right to a fair trial - was raised before the Tribunal, given that complainants were denied access to some material being considered by it; but these procedures have been validated by the European Court of Human Rights in the case of Kennedy (Chapter 1).

The two Articles which are now most likely to be invoked by a complainant before the Tribunal are Articles 8 and 10. However, the rights protected by these Articles are not absolute, they are qualified rights. This means that they may be infringed by public authorities if, and only if, in the circumstances of the case the infringement is correctly balanced against the wider public interest; and in each case the wider public interest must be described. This may include national security, the prevention or detection of crime, and the protection of public health. These Articles read as follows (for the purposes of this Report, the qualifications are underlined):

Article 8:  Right to respect for family and private life.

"1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 10:  Freedom of expression

"1.  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

"2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

A person can complain to the Tribunal if they believe they have been the victim of unlawful action by a public authority breaching the HRA. A public authority acts unlawfully if either: It fails to obtain lawful authority or no lawful authority is possible for infringing a person’s human rights, or if it breaches those rights by incorrectly balancing them against the public interest.

The Tribunal is only able to hear and determine human rights claims involving allegations of the unlawful use of covert techniques regulated by RIPA by the authorities listed [here – link to list]. These include the security and intelligence agencies, armed forces, any UK police force and the National Crime Agency. If the HRA claim is about  any other organisation, the Tribunal is not the appropriate place to make such a claim, and we recommend that the complainant seek legal advice.

Last updated: 5 Jul 16