Learning Outcomes
By the end of this article, you will be able to explain how the Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law, identify the obligations of public authorities to respect Convention rights, apply the principle of proportionality, and understand the mechanisms for challenging breaches of human rights by public bodies. You will also be able to analyse practical scenarios involving the duties of public authorities under the HRA, as required for SQE1.
SQE1 Syllabus
For SQE1, you are required to understand the application of the Human Rights Act 1998 and the European Convention on Human Rights to acts by public authorities. This article covers the following syllabus points:
- the incorporation of the ECHR into UK law by the Human Rights Act 1998
- the legal duties of public authorities under the HRA 1998
- the principle of proportionality in human rights cases
- the process and grounds for challenging public authority actions that infringe Convention rights
- the remedies available for breaches of Convention rights
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the effect of section 6 of the Human Rights Act 1998 on public authorities?
- When can a UK court issue a declaration of incompatibility under the HRA 1998?
- What is the principle of proportionality and how does it apply to public authority decisions?
- Who qualifies as a "public authority" for the purposes of the HRA 1998?
Introduction
The Human Rights Act 1998 (HRA) is the key statute that makes the rights in the European Convention on Human Rights (ECHR) enforceable in UK law. It requires public authorities to act compatibly with Convention rights and allows individuals to challenge breaches in UK courts. Understanding how the HRA applies to acts by public authorities is essential for SQE1.
The Human Rights Act 1998: Incorporating the ECHR
The HRA 1998 brings most of the rights in the ECHR directly into UK law. This means individuals can enforce their Convention rights in domestic courts, rather than having to apply to the European Court of Human Rights in Strasbourg.
Key Term: Human Rights Act 1998 (HRA)
The statute that incorporates most ECHR rights into UK law, making them directly enforceable in UK courts.
Duties of Public Authorities under the HRA
Section 6 of the HRA makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless primary legislation requires otherwise.
Key Term: public authority
Any body performing functions of a public nature, including government departments, local councils, police, and courts.
Section 6 applies to all public bodies and to private bodies when performing public functions. This means that public authorities must not breach Convention rights and, in some cases, must take positive steps to protect them.
Positive and Negative Obligations
Public authorities have both negative obligations (not to violate rights) and, in some cases, positive obligations (to take reasonable steps to protect rights, such as safeguarding life under Article 2).
Key Term: positive obligation
A duty on the state to take reasonable steps to secure the effective enjoyment of a Convention right.
The Principle of Proportionality
When a public authority restricts a qualified Convention right (such as Article 8: right to private life), it must show that the restriction is:
- Prescribed by law
- Pursues a legitimate aim (such as public safety or health)
- Is necessary in a democratic society
- Is proportionate to the aim pursued
Key Term: proportionality
The requirement that any interference with a Convention right must be no more than necessary to achieve a legitimate aim.
Courts will assess whether the authority’s action strikes a fair balance between the individual’s rights and the interests of the community.
Worked Example 1.1
A local council introduces a policy banning all demonstrations in a public square to prevent disruption. Protesters claim this breaches their Article 11 right to freedom of assembly.
Answer: The council must show the ban is lawful, pursues a legitimate aim (such as public order), and is proportionate. A total ban is unlikely to be proportionate if less restrictive measures (such as conditions on time or place) could achieve the same aim.
Interpretation of Legislation and Declarations of Incompatibility
Section 3 of the HRA requires courts to interpret all legislation, as far as possible, in a way that is compatible with Convention rights. If this is not possible, higher courts may issue a declaration of incompatibility under section 4.
Key Term: declaration of incompatibility
A formal statement by a higher court that a provision of primary legislation cannot be interpreted compatibly with a Convention right.
A declaration of incompatibility does not invalidate the legislation but signals to Parliament that amendment is needed.
Worked Example 1.2
A statute requires a government minister to set the minimum term for life prisoners. The court finds this violates Article 6 (right to a fair trial) because the minister is not an independent tribunal.
Answer: The court cannot interpret the statute compatibly with Article 6, so it issues a declaration of incompatibility. The law remains in force until Parliament decides whether to amend it.
Who Can Bring a Human Rights Claim?
Only a "victim" of an unlawful act by a public authority can bring a claim under section 7 of the HRA. A victim is someone directly and personally affected by the act or decision.
Key Term: victim
A person directly and personally affected by an alleged breach of a Convention right by a public authority.
Pressure groups and campaigners cannot bring a claim unless they are themselves victims.
Judicial Review and Remedies
If a public authority breaches a Convention right, the individual can seek judicial review or raise the issue as a defence in legal proceedings. Courts may grant remedies such as:
- Quashing orders (setting aside the decision)
- Mandatory orders (requiring action)
- Prohibiting orders (preventing action)
- Declarations
- Damages (if necessary to afford just satisfaction)
Key Term: judicial review
A court procedure allowing individuals to challenge the lawfulness of decisions or actions by public authorities.
Damages are only awarded if necessary to provide just satisfaction and are not automatic.
Worked Example 1.3
A police force fails to protect a vulnerable person from a known threat, resulting in harm. The victim claims this breaches Article 2 (right to life).
Answer: The court will consider if the police took reasonable steps to protect life. If not, the victim may be entitled to a remedy, such as damages, if necessary to afford just satisfaction.
Limits and Defences
A public authority is not liable under section 6 if, as a result of primary legislation, it could not have acted differently, or if it was giving effect to or enforcing provisions of an Act that are incompatible with the Convention.
The Role of the Courts
Courts must interpret legislation compatibly with Convention rights where possible. If not, they may issue a declaration of incompatibility. Courts also supervise public authorities through judicial review, ensuring compliance with the HRA.
Summary
- The Human Rights Act 1998 makes most ECHR rights enforceable in UK courts.
- Public authorities must act compatibly with Convention rights unless primary legislation prevents this.
- The principle of proportionality is central to assessing whether restrictions on rights are justified.
- Courts interpret legislation compatibly with Convention rights where possible and may issue declarations of incompatibility if not.
- Only victims can bring human rights claims against public authorities.
- Remedies include quashing orders, declarations, and damages if necessary.
Key Point Checklist
This article has covered the following key knowledge points:
- The HRA 1998 incorporates most ECHR rights into UK law and applies to public authorities.
- Public authorities must not act incompatibly with Convention rights and may have positive obligations.
- The principle of proportionality requires that restrictions on rights are lawful, pursue a legitimate aim, and are no more than necessary.
- Courts must interpret legislation compatibly with Convention rights where possible; otherwise, they may issue a declaration of incompatibility.
- Only victims can bring claims under the HRA; pressure groups cannot unless directly affected.
- Remedies for breaches include quashing orders, declarations, and damages if just satisfaction requires.
Key Terms and Concepts
- Human Rights Act 1998 (HRA)
- public authority
- positive obligation
- proportionality
- declaration of incompatibility
- victim
- judicial review
