Helping you understand Welsh law

Introduction to human rights law

‘Human rights’ is a term used to refer to certain fundamental rights and freedoms which are so important that they are given special protection by law.  The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is an international treaty to protect human rights in Europe.  The United Kingdom was one of the original parties to the ECHR when it came into effect in 1953.  Persons who felt their human rights under the ECHR had been violated could apply to the European Court of Human Rights to have those rights upheld.

Those human rights were incorporated directly into UK law by the Human Rights Act 1998 (HRA 1998).  This means that persons can now assert their human rights directly in the UK courts, rather than having to apply to the European Court of Human Rights.

The UK has signed up to most but not all of the human rights protected under the ECHR.  HRA 1998 incorporates into UK law only those rights to which the UK has signed up.  Those rights are known as ‘Convention rights’ – and are commonly referred to by reference to the relevant Article of the Convention within which they fall. They are as follows:

  • Right to life (Article 2)
  • Right not to be subjected to torture, or inhumane or degrading treatment or punishment (Article 3)
  • Right not to be held in slavery or servitude, or required to perform forced or compulsory labour (Article 4)
  • Right to liberty and security of person (Article 5)
  • Right to a fair trial, and to be presumed innocent until proven guilty (Article 6)
  • Right not to be punished except in accordance with the criminal law (Article 7)
  • Right to respect for private and family life (Article 8)
  • Right to freedom of thought, conscience and religion (Article 9)
  • Right to freedom of expression (Article 10)
  • Right to freedom of peaceful assembly and freedom of association with others (Article 11)
  • Right to marry and to found a family (Article 12)
  • Right to freedom from discrimination in enjoyment of the Convention Rights on any ground, including sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status (Article 14)
  • Right to peaceful enjoyment of possessions (Article 1, Protocol 1)
  • Right to education (Article 2, Protocol 1)
  • Right to free elections (Article 3, Protocol 1)
  • Right not to be given the death penalty (Article 1, Protocol 13)

The Act works by imposing a requirement on public authorities (including government) to respect and protect these rights in everything that they do. A failure to do so can be challenged on the courts.

Most Convention rights, by their very nature, can only belong to human beings.  However, this is not true for all of them.  In particular, the right to peaceful enjoyment of possessions belongs both to natural persons (human beings) and legal persons (such as companies).

Some Convention rights are absolute (inviolable) – such as the right not to be given the death penalty.  Other Convention rights can be overridden in certain circumstances – for example, the right to liberty and security of person is not breached when someone is lawfully imprisoned for committing a criminal offence, and the right to freedom of expression may be subject to limits in the interests of national security or public safety.

The UK can ‘derogate’ from (disapply in specific circumstances) some (but not all) Convention rights in times of war or other public emergency.  There are no derogations currently in force, but the UK has used this method in the past to enable the creation of enhanced powers of arrest and detention of suspected terrorists (in response to the state of emergency existing after the 9/11 terrorist attack in New York).

HRA 1998 makes the Convention rights directly applicable and enforceable in the UK in the following ways:

  • A court or tribunal determining a question about Convention rights must take into account any relevant decisions of the European Court of Human Rights.
  • So far as possible, UK legislation must be read and applied in a way which is compatible with Convention rights.  If this is not possible, a court may make a declaration of incompatibility.  When a declaration of incompatibility is made, any Minister of the Crown may make an order revising the legislation to make it compatible with Convention rights if he or she considers that there are compelling reasons to do so.
  • It is unlawful for a public authority to act in a way which is incompatible with Convention rights (unless wording in primary legislation means it cannot act differently, and unless it has to act in that way in order to give effect to incompatible legislation).
Section 1

Human rights in post-devolution Wales

Any provision in an Assembly Act (or Assembly Measure) which is incompatible with Convention rights is outside the legislative competence of the National Assembly.  This means that such a provision would be invalid and of no effect (see section 108A(1)and the restriction in 108A (2) (e) of the Government of Wales Act 2006).

The Welsh Ministers have no power to make, confirm or approve any subordinate legislation, or to do any other act, so far as that legislation or act is incompatible with any of the Convention rights (see section 81 of the Government of Wales Act 2006). The Welsh Ministers must not, therefore, in exercising any of their functions breach the Convention rights.

Section 2

Other international human rights instruments

The United Kingdom has ratified a number of other international human rights instruments. These include the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations Convention on the Rights of the Child (UNCRC).

In Wales, the UNCRC was embedded into Welsh devolved law by the Rights of Children and Young Persons (Wales) Measure 2011. This Measure provides that the Welsh Ministers must, when exercising any of their functions, have due regard to the requirements of Part I of the UNCRC, articles 1 to 7 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, except article 6(2), and articles 1 to 10 of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. Among other things, this means the Welsh Ministers must have regard to these rights when formulating the Bills which they introduce into the National Assembly for Wales, and when formulating subordinate legislation.

More articles in Introduction to human rights law