The implementation and impact of the Human Rights Act 1998 in the UK

PhD thesis


Donald, A. 2014. The implementation and impact of the Human Rights Act 1998 in the UK. PhD thesis Middlesex University School of Law
TypePhD thesis
Doctorate by public works thesis
TitleThe implementation and impact of the Human Rights Act 1998 in the UK
AuthorsDonald, A.
Abstract

The premise of my research is an understanding of human rights not only as a technical, legal discourse but also as a set of standards and principles which, when applied outside the courts, provide a framework for decision-making, a vehicle for social and organisational change, and a basis for moral, as well as legal, claims upon the exercise of power. My research proceeds within the conceptual framework provided by recent theory conceiving of a democratic legal order which includes human rights as a ‘culture of justification’ - a culture in which exercises of power, or failures to exercise power, which impinge upon human rights require reasoned public justification that is open to independent scrutiny. In this statement I divide my research into two strands. The first concerns the application of human rights standards and principles in public services. Its distinct contribution lies in the use of empirical research methods to explore how, and with what results, public authorities have embedded human rights standards and principles in decision making since the enactment of the Human Rights Act (HRA) 1998. This inquiry contributes to the emergent understanding of what constitutes a ‘human rights culture’ in public services, in both empirical and normative terms. I identify factors that tend either to encourage or inhibit the systematic application of human rights at the levels of both individuated and corporate decision-making. I conclude that a human rights culture has largely failed to materialise among public authorities. However, I identify variation between the nations of the UK (with more explicit adoption of human rights standards in the devolved nations) and between public authorities (with a few that demonstrate what an overtly ‘rights-respecting’ service looks like). I evaluate the evidence that may be adduced as to the impact of human rights in public services and propose how evaluative work might proceed in the future. The second strand of my research concerns the political discourse surrounding the HRA and, in particular, initiatives to create a new UK bill of rights. I identify principles and methods that have been used to create bills of rights in comparable jurisdictions, situating these within the post-war trend towards ‘process-driven constitutionalism’. I evaluate bills of rights processes in the UK in the light of this experience. I conclude that conditions for reform of human rights law in the UK are deeply unfavourable and that the consultative processes pursued by successive governments are ill-designed to achieve democratic legitimacy for the project. My research establishes that dissensus on human rights in the UK traverses the ‘fault lines’ of profound social and political antagonisms. These include the relationship between the individual and the community, commonly invoked through the lens of ‘rights and responsibilities’; between the nation state and Europe; and between parliament and the courts. Human rights have also become a prime venue for the negotiation of religious and cultural differences. Within this turbulent context, my research proposes ways of advancing debate about human rights such that it meets the requirements of open justification.

Research GroupLaw and Politics
LanguageEnglish
Department nameSchool of Law
Institution nameMiddlesex University
Publication dates
Print05 Sep 2014
Publication process dates
Deposited05 Sep 2014
Completed04 Mar 2014
Output statusPublished
Accepted author manuscript
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