What is the Human Rights Act?

The Human Rights Act protects everybody in the UK, and the rights contained in the Act belong to everyone in the UK. This is a key feature of human rights- they are universal and apply to everyone. They are not gifts from the Government or rewards that you earn. You do not need to be a UK citizen to have these rights under the Human Rights Act. The rights in the Human Rights Act are there for everyone; they act as a safety net and offer protection for those who may be the most vulnerable.

The starting point for human rights is the same for everyone, no matter who they are. For some people however, this may require more action from the state or public authorities to realise the rights in the Human Rights Act. The Human Rights Act encourages an individualised approach which means that realising human rights may mean different things to different people.

Section 6 of our Human Rights Act 1998 puts a legal duty on all “public authorities”, and their employees. There are two different types of “public authority” that must respect our human rights:

1. ‘Core’ public authorities: these are bodies typically seen as public, for example, local authorities, emergency services, NHS, regulators, public education providers, and Government Departments, as well as courts and tribunals.
2. ‘Hybrid’ public authorities: these are other bodies (for example private companies and charities) who must only follow the Human Rights Act when they are doing things which are “of a public nature”. This means that they are doing something which would typically be done by a core public body, such as a private company running a prison. The Care Act increased the number of organisations that could be classed as ‘hybrid’ public authorities by including any registered care providers that receive public funding to provide a public function. This applies to situations where, for example, a private care home is receiving funding from the local authority to provide care for an individual.

The duties under the Human Rights Act can be shared. This means that a variety of public authorities may have overlapping duties for an individual.

The Human Rights Act places a duty on public authorities to respect, protect and fulfil our human rights across their actions, decisions, policies and services.

The duty to respect people’s human rights means that public authorities must not restrict them or try to breach them. This is known as a negative duty. It means that staff should avoid interfering with someone’s rights unless it is absolutely necessary to protect that person or others from harm.

The duty to protect people’s human rights means that by law, public authorities must step in and take positive action to protect people from harm. This is known as a positive obligation. It could involve protecting a person from harm by another, non-official person, for example a family member or carer. This duty is usually called safeguarding. It could occur in domestic abuse cases, where the police are aware of what is happening but fail to step in and prevent any further harm from occurring.

The duty to fulfil people’s human rights means investigating when things have gone wrong and putting measures in place to stop it from happening again. This is also known as a procedural duty. It means that public authorities should take steps to strengthen access to and the realisation of human rights. This was the duty used by the Hillsborough families to get justice through an inquest.

These duties apply to all the rights in the Human Rights Act. The public authorities that we work with tell us that they do not see these duties as a burden, but rather as an important tool to help them make rights-respecting decisions.

The Human Rights Act applies across the UK. The rights within the Human Rights Act, brought into UK law from ECHR are interwoven into the devolution arrangements in Northern Ireland, Scotland and Wales. The Scotland Act 1998, the Wales Act 1998 and the Northern Ireland Act 1998 (which is part of an international peace process) established devolved legislatures and administrations. Each devolved nation has a range of issues for which it is responsible, many of which impact on human rights.

All the devolution arrangements prevent the parliaments/assemblies in devolved nations from passing laws which may be incompatible with Convention rights, as set out in the Human Rights Act. If a court in the devolved nations finds a law to be incompatible with human rights, it can be disapplied, because such a law would be outside the powers delegated to those bodies (“ultra vires”). This is not the same for UK Parliament which is sovereign. The mechanisms in the Human Rights Act and its position in devolution arrangements are part of what makes it such an innovative, distinct piece of legislation. In devolved nations, like Scotland, the HRA is a crucial building block for increased rights protections.