Human Rights & the Judiciary

This lesson examines the role of the judiciary in protecting human rights in the UK. The protection of rights is one of the judiciary's most important functions, and it has been significantly expanded by the Human Rights Act 1998 (HRA) and the European Convention on Human Rights (ECHR). Understanding how rights are protected — and the debates around them — is essential for the Edexcel A-Level Politics specification.

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The European Convention on Human Rights (ECHR)

The ECHR was drafted by the Council of Europe (not the European Union) in 1950, in the aftermath of the Second World War and the Holocaust. The UK played a leading role in drafting it. The Convention sets out a range of fundamental rights and freedoms:

Key ECHR Rights

Article	Right
Article 2	Right to life
Article 3	Prohibition of torture and inhuman or degrading treatment
Article 4	Prohibition of slavery and forced labour
Article 5	Right to liberty and security
Article 6	Right to a fair trial
Article 8	Right to respect for private and family life
Article 9	Freedom of thought, conscience, and religion
Article 10	Freedom of expression
Article 11	Freedom of assembly and association
Article 14	Prohibition of discrimination (in the enjoyment of Convention rights)
Protocol 1, Article 1	Protection of property
Protocol 1, Article 3	Right to free elections

Categories of Rights

ECHR rights fall into three categories:

• Absolute rights — cannot be limited or restricted under any circumstances. Examples: Article 3 (prohibition of torture), Article 4 (prohibition of slavery).
• Limited rights — can be restricted in specific, defined circumstances set out in the Convention itself. Example: Article 5 (right to liberty — detention is lawful after conviction).
• Qualified rights — can be restricted if the restriction is (a) prescribed by law, (b) necessary in a democratic society, and (c) in pursuit of a legitimate aim. Examples: Article 8 (private life), Article 10 (expression), Article 11 (assembly).

Exam Tip: The distinction between absolute, limited, and qualified rights is frequently tested. Ensure you can categorise key rights and explain the criteria for restricting qualified rights.

The European Court of Human Rights (ECtHR)

The ECtHR sits in Strasbourg and hears cases brought by individuals who claim that their Convention rights have been violated by a member state. The Court's judgments are binding on the state concerned.

The ECtHR operates on the principle of subsidiarity — it expects domestic courts to be the first line of protection for Convention rights. It also allows states a margin of appreciation — a degree of discretion in how they implement Convention rights, recognising that different countries may apply the same right in different ways.

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The Human Rights Act 1998 (HRA)

Before the HRA, UK citizens who wished to enforce their Convention rights had to take their case to the ECtHR in Strasbourg — a process that was slow, expensive, and inaccessible to most people. The HRA incorporated the ECHR into UK domestic law, allowing Convention rights to be enforced in UK courts.

Key Provisions of the HRA

Section	Provision
Section 1	Sets out the Convention rights that are incorporated into UK law
Section 2	Requires UK courts to "take into account" (but not necessarily follow) the case law of the ECtHR
Section 3	Requires courts to interpret legislation, "so far as it is possible to do so," in a way that is compatible with Convention rights
Section 4	Allows courts to issue declarations of incompatibility if legislation cannot be read compatibly with Convention rights
Section 6	Makes it unlawful for any public authority to act in a way that is incompatible with Convention rights
Section 7	Allows individuals to bring cases against public authorities that have violated their Convention rights
Section 10	Provides a "fast-track" remedial order procedure for ministers to amend incompatible legislation
Section 19	Requires ministers introducing a bill to make a "statement of compatibility" — declaring whether the bill is compatible with Convention rights

Impact of the HRA on the Judiciary

The HRA has significantly expanded the judiciary's role in rights protection:

1. Direct enforcement. Before the HRA, Convention rights could only be enforced in Strasbourg. Now, UK courts can hear cases based on Convention rights directly.
2. Interpretive power. Section 3 gives judges a powerful tool to reinterpret legislation to make it compatible with rights — effectively rewriting the meaning of statutes.
3. Declarations of incompatibility. Section 4 gives courts a formal mechanism to signal that legislation violates rights, even though it cannot invalidate the law.
4. Culture of rights. The HRA has embedded a culture of human rights awareness in public authorities, which are now required by Section 6 to consider Convention rights in all their decisions.

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Key Human Rights Cases

Belmarsh Case — A v Secretary of State (2004)

• Issue: Indefinite detention of foreign terror suspects.
• Rights engaged: Article 5 (liberty) and Article 14 (discrimination).
• Decision: Declaration of incompatibility — the detention provisions were incompatible with the ECHR.
• Impact: Government replaced detention with control orders.

Ghaidan v Godin-Mendoza (2004)

• Issue: Whether the Rent Act 1977 applied to same-sex partners.
• Rights engaged: Article 14 (discrimination) and Article 8 (private life).
• Decision: The House of Lords used Section 3 HRA to read the Rent Act as applying to same-sex partners.
• Impact: Demonstrated the power of Section 3 to radically reinterpret legislation.

R (Steinfeld) v Secretary of State (2018)

• Issue: Opposite-sex couples could not enter civil partnerships (only marriage), while same-sex couples could choose either.
• Rights engaged: Article 14 (discrimination) and Article 8 (private life).
• Decision: Declaration of incompatibility — the exclusion was discriminatory.
• Impact: Parliament extended civil partnerships to opposite-sex couples.

Hirst v UK (No. 2) (2005) — ECtHR