The Human Rights Act 1998: A Bill of Rights for Britain?

Abstract

On the eve of the tenth anniversary of the coming into force of the Human Rights Act 1998 (HRA), this thesis endeavours to explore the extent to which New Labour’s flagship piece of legislation can be considered a Bill of Rights for Britain. It explores the debate surrounding the characteristics of Bills of Rights in comparison to the traditional UK approach towards human rights protection, arguing that a compromise between the two positions exists in the form of third wave Bills of Rights; a model which increases the power of the judiciary whilst still preserving parliamentary sovereignty.

Although the HRA has the potential on paper to be a third wave Bill of Rights, it is argued that it can only be so if the judiciary takes a relatively expansive approach towards its key provisions: sections 2, 3, 4 and 6. Much of the thesis therefore focuses on finding traces of such expansive judicial reasoning, discovering that the judiciary’s application of the Act has been distinctively uneven. In some instances, the judiciary have taken a severely restrictive approach towards the HRA, whilst in others they have taken a more expansive approach akin to a third wave Bill of Rights. However, despite any inconsistency, this thesis nevertheless argues that a general trend by the judiciary, to move beyond the traditional British model of human rights protection towards a Bill of Rights, is beginning to emerge.

The thesis also argues that the HRA must, in order to be considered a Bill of Rights, have the support and backing of the public. This, however, has not happened; despite the fact that the HRA displays many of the general characteristics of Bills of Rights, as well as also reflecting British legal tradition. With calls for the repeal and replacement of the HRA, it appears unlikely that it will have the time needed to fulfil its potential as a Bill of Rights for Britain.