The main effect of the Human Rights Act 1998 is to provide a framework for the operation of the European Convention on Human Rights ("ECHR") in British domestic law (see Human Rights Act 1998 sch.1).
This is not quite the same as incorporating the ECHR into domestic law. The Act does not make ECHR convention rights part of domestic law as such. What it does do is enable private citizens to enforce convention rights against public authorities through the domestic courts. Thus it is of fundamental importance to recognise that the Human Rights Act 1998 applies the ECHR only in respect of the activities of public authorities (which include courts and tribunals) and of any person certain of whose functions are functions of a public nature (Human Rights Act 1998 s.6).
A report by the Joint Committee of the House of Lords and the House of Commons ("The Meaning of Public Authority under the Human Rights Act", 23rd February 2004 HL Paper 39, HC 382) is essential reading for anyone concerned with the question of whether the Human Rights Act might not apply in any particular situation because of the lack of "public" status of acts done by a party who might have breached the Act and/or the ECHR.
The Human Rights Act 1998 and the ECHR thus have no direct relevance in disputes between private sector employers carrying out normal commercial operations (ie operations which are not of a public nature) and their employees. As explained by the Lord Chancellor in Parliament, the Act seeks to "protect the human rights of individuals against the abuse of power by the state, broadly defined, rather than to protect them against each other. That is the only practical difference between the full incorporation of the convention rights into our domestic law and the actual effect of the Bill" (see Hansard (HL Debates), 5 February 1998, col 840).
In an employment law context, a main effect of the introduction of the Act is to justify increased use of arguments by employees that a dismissal was unfair on the basis that action taken by the employer would, if committed by a public authority, amount to an unjustifed breach of a convention right. In due course this may give the lie to attempts by government ministers to downplay the effect of the Act (see for example 2000/09/04 - LCD Press Release (319a/00) re introduction of Human Rights Act which refers to "the belief, held in some quarters, that the Act will overthrow or undermine long-standing legislation and case law, or require magistrates or judges to make 'political' decisions" as sensationalist exaggeration which " shows a misunderstanding of how the Convention operates ..... [and] ........ ignores the fact that the Convention is already part of the domestic law of almost all of the rest of Europe ......").
While it is true, as the Press release noted above states, that. UK citizens have enjoyed the convention rights for nearly fifty years (the implication being that not much will change on 2nd October 2000) in practice the new high profile for the ECHR combined with the fact that it will no longer be necessary to have the tenacity and finance to take claims to the European Court of Human Rights in Strasbourg gives a new impetus to Human Rights issues in British law.
The ECHR was adopted by the Council of Europe on 4th November 1950. The UK had a major role in drafting it and was the first to ratify it, in 1951. In 1966 the UK agreed that individual citizens should have a right of access to the European Court of Human Rights in Strasbourg. All Council of Europe countries have now ratified the Convention, and all except Norway and Ireland have effectively incorporated it into their domestic law.
The Council of Europe and the ECHR are entirely separate from the European Communities (or the European Union) and have separate Courts (the European Court of Human Rights which sits in Strasbourg - see Human Rights/European Court of Human Rights - and the EU European Court of Justice which sits in Luxembourg - see European Law/institutions of the European Community ). Nonetheless the ECJ will take account of the European Convention on Human Rights in relevant cases, even though it has no direct jurisdiction to enforce it (see for example Carpenter v Home Office ECJ 2002 ECJ Case C-60/00 on 11th July 2002).
The Law Commission published a report at the end of September 2000 which points out that the levels of compensation likely to be awarded in the UK Courts for infringements of the ECHR are likely to be higher than those previously awarded by the ECtHR. The report is "Damages under the Human RIghts Act 1998", available from The Stationery Office (see Addresses, tel & fax nos ) at £18.75.
There is an important "lacuna" in the ECHR article dealing with discrimination (art 14). This is that art 14 only prohibits discrimination in so far as it affects a right which is specifically recognised by the Convention (see for example R (on the application of Mitchell) v Coventry University and anor, Collins J in the Administrative Court on 2nd March 2001, not reported). A new protocol (protcol 12) to the ECHR has been proposed to remove that restriction and provide that no-one can be discriminated against by any public authority on any ground. This protocol was signed on behalf of 25 countries at Rome on 4th November 2000, but not by the United Kingdom (see 2000/11/04 - Council of Europe Press Release re protocol 12 and notes at Discrimination/a general note ).
Details of the effect of the Human Rights Act 1998 on the operation of the courts were provided by the Lord Chancellor to the Joint Parliamentary Committee on Human Rights in March 2001 (see 2001/03/20 - LCD Press Release 108/01 re Human Rights & the Courts for information).
Whilst not directly relevant to employment law it is of important general interest that the 11th September 2001 (9/11) terrorist attacks in New York and Washington led to the introduction in the UK Parliament on 12th November 2001 of an "Anti-terrorism, Crime and Security Bill". The exercise of powers under that Bill, if enacted, could be inconsistent with the United Kingdom's obligations under Article 5(1) of the ECHR and so the right of derogation conferred by Article 15(1) of the Convention has been exercised by the UK (see the Human Rights Act 1998 (Designated Derogation) Order 2001, SI 2001/3644 and the Human Rights Act 1998 (Amendment No. 2) Order 2001, SI 2001/4032).
The European Court of Human Rights held in January 2002 that prohibition of a strike can amount to a restriction on the "freedom of assembly and association" guaranteed by the ECHR, thus contradicting previous UK thinking on that important matter (see editor's note at University College London Hosp NHS Trust v Unison 1999 ICR 204, CA and see also Demir & anor v Turkey ECHR 2009 IRLR 766).
Full text of the Human Rights Act is included in this program (click on ACTS OF PARLIAMENT etc/Human Rights Act 1998/text ) and is also on the British government Acts of Parliament website. The wording of the ECHR itself is also included as Human Rights Act 1998 Sch.1.
See also notes at Human Rights/Human Rights Act 1998 generally and/or at Discrimination/new EC directives .