Introduction
The Human Rights Act 1998 (HRA) was a landmark piece of legislation, intended to "bring rights home" by allowing individuals in the United Kingdom to seek redress for violations of the European Convention on Human Rights (ECHR) in domestic courts. Before the HRA, a claimant's only recourse was the lengthy and expensive process of petitioning the European Court of Human Rights (ECtHR) in Strasbourg. This essay will argue that while the HRA has undeniably simplified the application process in some respects, significant procedural and substantive hurdles remain, making the path to redress often cumbersome for the applicant. The requirements of victim status, strict time limits, and the complexities surrounding public authorities combine to create a challenging, rather than simple, legal landscape.
The Framework for Redress
The HRA establishes a direct cause of action against public authorities. Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, unless primary legislation makes the act unavoidable. This provision is the foundation of domestic human rights litigation. A person who claims that a public authority has acted unlawfully under section 6 can then rely on Section 7 to bring proceedings. If successful, Section 8 empowers the court to grant a remedy that it considers "just and appropriate". In theory, this provides a clear, three-stage route: establish an incompatible act by a public authority, bring a claim, and receive a remedy. This structure is certainly simpler than the pre-2000 position, which required exhausting all domestic remedies before even applying to the ECtHR. However, the practical application of these sections reveals a process that is more complex than it first appears.
Cumbersome Procedural Hurdles
Several elements of the HRA framework create difficulties for claimants, making the process cumbersome. Firstly, Section 7(1) of the HRA restricts the ability to bring a claim to a person who is (or would be) a "victim" of the unlawful act. Section 7(7) adopts the same definition of "victim" as used by the ECtHR under Article 34 of the ECHR. This has been interpreted to mean that a claimant must be "directly affected" by the alleged violation (Klass v Germany (1978)). This requirement prevents charities, pressure groups, and other organisations from bringing public interest litigation on behalf of others or in relation to an abstract breach of rights. This is a significant barrier, as it places the entire burden of litigation on individuals who may lack the resources or knowledge to pursue a claim, limiting the HRA's potential for wide-scale public accountability (Fenwick, 2017).
Secondly, a major procedural obstacle is the strict time limit imposed by Section 7(5). A claim under the HRA must be brought within one year of the date on which the act complained of took place. This is considerably shorter than the standard six-year limitation period for tort or contract claims. While the court has the discretion to allow proceedings to be brought outside this period if it is "equitable having regard to all the circumstances," this introduces a level of uncertainty for claimants and can be a difficult hurdle to overcome. For an individual who may not immediately realise their rights have been breached, or who lacks prompt access to legal advice, this one-year limit can act as an absolute bar to justice.
Furthermore, identifying a responsible "public authority" under Section 6 can itself be a complex legal question. While "core" public authorities like government departments and the police are clearly covered, the status of "hybrid" or "functional" public authorities—private bodies performing public functions—is less clear. The House of Lords' decision in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] established a multi-faceted test to determine this, but its application remains contentious. A claimant may have to engage in complex preliminary litigation simply to establish that the body they wish to sue is indeed a public authority for the purposes of the HRA, adding another cumbersome layer to the process.
Conclusion
In conclusion, the assertion that the application for redress for violated human rights is simple is difficult to sustain. While the HRA 1998 created a domestic path to justice that was previously non-existent, this path is fraught with obstacles. The restrictive "victim" test, a short and unforgiving time limit, and the potential for complex arguments over the definition of a "public authority" all contribute to a process that can be described as cumbersome. These procedural hurdles, combined with the discretionary nature of remedies under Section 8, mean that while the door to the courtroom has been opened, it is by no means an easy one to walk through. The HRA has made human rights claims possible in domestic courts, but it has not necessarily made them simple.
References
- Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37.
- Fenwick, H. (2017) Civil Liberties and Human Rights. 7th ed. Routledge.
- Human Rights Act 1998.
- Klass and Others v Germany (1978) 2 EHRR 214.
