Learning Outcomes
This article explains the mechanisms by which the Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law and clarifies the duties it places on public authorities to respect Convention rights. It provides a comprehensive analysis of the legal meaning of 'public authority', including the distinction between core and hybrid authorities, and details how these bodies must act in compliance with Convention rights, including both positive and negative obligations. The article examines the principle of proportionality in depth, showing how it guides the judicial evaluation of restrictions on qualified rights. It also demonstrates, with examples and case references, how legislation is interpreted under the HRA and the circumstances under which courts may issue declarations of incompatibility. Mechanisms for challenging public authority actions by judicial review are covered, alongside the remedies courts may award. The content also enables analysis of real-world situations involving public authority duties, case law developments, and practical procedures for raising human rights claims, as required by the SQE1 assessment.
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, with a focus on 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, including core and hybrid authorities
- the scope of 'acts' under s.6 HRA, including private vs. public functions
- negative and positive obligations on authorities
- the principle of proportionality and its application to restrictions on Convention rights
- the process and grounds for challenging public authority actions that infringe Convention rights, including judicial review
- the interpretation of legislation under section 3 HRA and the making of declarations of incompatibility
- the concept of 'victim' and standing to bring human rights claims
- the range and limits of remedies available for Convention breaches
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 considered a “public authority” under section 6 HRA 1998, and how does the distinction between core and hybrid authorities affect their duties?
- Explain how section 3 HRA impacts the interpretation of primary and secondary UK legislation.
- What is the difference between a positive and negative obligation on public authorities under the ECHR?
- In what circumstances may a UK court issue a declaration of incompatibility under the HRA, and what are the consequences?
- Describe the principle of proportionality in the context of human rights and its application by courts.
Introduction
The Human Rights Act 1998 (HRA) is a fundamental element of the UK’s constitutional framework, incorporating most of the European Convention on Human Rights (ECHR) into UK law. It establishes Convention rights as directly enforceable against public authorities in domestic courts and requires those authorities to act compatibly with the rights and freedoms set out in the ECHR. The Act also prescribes the approach courts must take towards legislation and provides mechanisms for judicial scrutiny of public authority actions, including judicial review and declarations of incompatibility. This article addresses the core concepts relating to the HRA’s application to the acts of public authorities, statutory interpretation, proportionality, standing, and available remedies.
Key Term: Human Rights Act 1998 (HRA)
A UK statute making most ECHR rights directly enforceable in domestic courts and imposing duties on public authorities to comply with Convention rights.
The Human Rights Act 1998: Incorporating the ECHR
The HRA brings the ECHR 'Convention rights'—set out in its Schedule 1—into UK law. These rights, including the right to life, prohibition on torture, right to liberty and security, right to a fair trial, right to respect for private and family life, freedom of expression, and others, are now part of the UK’s legal regime. Individuals can enforce these rights in UK courts without first exhausting proceedings in the European Court of Human Rights in Strasbourg.
The Act seeks to ‘bring rights home’ by enabling UK courts to address breaches of Convention rights and by requiring public authorities to observe human rights standards in their decision-making and day-to-day operations. However, Parliament retains the formal legal authority to pass legislation that may conflict with the Convention, a principle known as parliamentary sovereignty.
Duties of Public Authorities under the HRA
Meaning of "Public Authority"
Section 6(1) HRA makes it “unlawful for a public authority to act in a way which is incompatible with a Convention right.” The term "public authority" is interpreted both broadly and functionally.
Key Term: public authority
Any court or tribunal, or any person carrying out functions of a public nature (core or hybrid), with certain exceptions for acts of a private nature.
There are two principal categories:
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Core public authorities: These bodies are inherently public by their nature and include government departments, local authorities, the police, the armed forces, and the courts themselves. Their activities are always subject to scrutiny under the HRA.
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Hybrid (functional) public authorities: These are private or non-governmental entities, such as private companies, charities, or outsourcing providers, which may perform functions of a public nature—such as running a prison, managing care homes under government contract, or delivering social housing. Section 6(3)(b) HRA brings such bodies within its scope only for their public functions, not their purely private acts. The test, as clarified in Aston Cantlow v Wallbank and later cases, focuses on the nature of the function, the body's statutory basis, public funding or control, and democratic accountability.
A body is not acting as a public authority if, in respect of the act, it is doing a private act—even if it is generally considered a hybrid authority (e.g., a private care home running on a purely commercial basis).
Scope of Section 6 HRA
Section 6(1) applies to any act or omission by a public authority except when:
- The authority could not have acted differently because of primary legislation (s.6(2)(a)).
- The authority was acting to give effect to legislation which is itself incompatible and cannot be interpreted compatibly (s.6(2)(b)).
This shields public authorities where strict compliance with primary legislation would make it impossible to avoid a breach of Convention rights, balancing legal certainty and governmental policy with human rights protection.
Positive and Negative Obligations
The Act recognises both negative and positive obligations on state authorities:
- Negative obligations require authorities not to act in a manner violating Convention rights (for example, not to subject individuals to torture).
- Positive obligations require authorities, in defined circumstances, to take reasonable steps to secure the effective enjoyment of rights (such as measures to protect life where the state knows or ought to know of a real and immediate risk to an individual, following ECtHR jurisprudence such as Osman v UK).
Key Term: positive obligation
A duty on the state to take steps to secure effective enjoyment of a Convention right, e.g., protecting persons from foreseeable harm by third parties.
The scope of positive obligations depends on the nature of the right (they are most prominent in Articles 2, 3, 8, 13) and is circumscribed by the principle of proportionality and what is possible and reasonable for the state to do.
Limits to Public Authority Liability
Section 6 gives public authorities a defence when acting under a statutory provision that is itself incompatible with the Convention and there is no lawful way to avoid the incompatibility. The protection is strictly applied: authorities must adopt any possible interpretation or apply available administrative mechanisms to bring themselves into compliance wherever possible (per s.3 HRA; see further below).
The Principle of Proportionality
The requirement of proportionality is central to determining whether an interference with a qualified Convention right (such as Articles 8–11) is justified.
Courts employ the following structured test to assess proportionality:
- Is the measure in question prescribed by law?
- Does it pursue a legitimate aim (such as public safety, national security, protection of health or morals, rights and freedoms of others)?
- Is the measure necessary in a democratic society?
- Proportionality: Is there a fair balance between the rights of the individual and the interests of society? Is the interference no more than necessary to achieve the stated aim?
Key Term: proportionality
The requirement that any interference with a Convention right must be no more than necessary to secure a legitimate aim; a fair balance must be struck.
The courts examine whether the objective could have been achieved by less restrictive means and whether the interference with rights goes beyond what is needed. If it does, the measure will not be considered proportionate and will be unlawful under the HRA.
Worked Example 1.1
A local authority introduces a blanket ban on public assemblies or protests in a main public square to reduce congestion and safeguard commercial activity. Protesters challenge the decision, claiming a breach of their Article 11 right to peaceful assembly.
Answer:
The authority must show the restriction is lawful, pursues a legitimate aim (e.g., preventing public disorder), and is proportionate. A total ban will be difficult to justify under the proportionality test—if the same aim could be achieved by regulating time, place, or conditions of assembly rather than prohibiting all protest, the total ban will likely be disproportionate and incompatible with Article 11.
When assessing proportionality, UK courts follow ECtHR standards but, due to the doctrine of the "margin of appreciation", they may grant Parliament or domestic authorities a degree of leeway in matters of social policy or national security, while still being obliged to scrutinise the justification proffered by the state.
Interpretation of Legislation and Declarations of Incompatibility
Section 3 HRA: Interpretation Duty
Section 3 imposes an interpretative obligation: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” Courts must bend the meaning of legislation—even if linguistically strained—provided the adoption of a Convention-compliant interpretation would not do violence to the fundamental features of the statute or Parliament's intent, as confirmed in cases such as Ghaidan v Godin-Mendoza and R v A (No 2).
If compatible interpretation is impossible, the court must nonetheless apply the legislation but may make a declaration of incompatibility under section 4.
Key Term: declaration of incompatibility
A formal statement by the High Court or above that a provision of primary legislation is inconsistent with a Convention right and cannot be interpreted compatibly.
A declaration of incompatibility does not invalidate the legislation. Its principal effect is political: it notifies Parliament and the government that the law is inconsistent with the UK's human rights commitments and triggers a procedure for fast-track remedial legislation (see s.10), but the defective law remains valid unless and until amended by Parliament.
Worked Example 1.2
A statute empowers a government minister, rather than a judge, to set minimum sentences for certain criminal offences. The courts are unable to interpret the provision compatibly with Article 6 (right to a fair trial before an independent tribunal).
Answer:
The court issues a declaration of incompatibility, stating that the law cannot be read in a way that complies with Article 6. The legislation continues in force until Parliament decides whether to amend it, but the declaration exerts significant political pressure for reform.
Section 4 declarations are exceptional and discretionary. Courts will strive to avoid them and only grant one as a last resort when a compatible interpretation is not honestly possible. They are available only to the High Court and above (not to lower courts or tribunals).
Who Can Bring a Human Rights Claim?
Section 7 HRA restricts standing to “victims” of an unlawful act by a public authority.
Key Term: victim
A person who is directly and personally affected by a public authority’s alleged violation of a Convention right. For standing, the test mirrors Article 34 ECHR.
This includes natural or legal persons, groups, or organisations that are themselves affected, but not third parties or those raising general or public interest concerns (unless they are also direct victims).
Legal proceedings may be brought in two principal ways:
- As a free-standing, direct claim under the HRA (generally by judicial review).
- As a defence or counterclaim in other legal proceedings.
Pressure groups and charities cannot bring HRA claims unless they themselves are directly affected by the breach. Providing advice or campaigning on an issue does not confer victim status unless they are otherwise a victim within the meaning of Article 34 ECHR.
Judicial Review and Remedies
Judicial Review of Human Rights Breaches
If a claimant alleges that a public authority has breached their Convention rights, they may seek a remedy by judicial review—provided all procedural requirements are met. Judicial review focuses on whether the public body has acted lawfully, rationally, and fairly, and now, whether it has acted compatibly with Convention rights.
Key Term: judicial review
A process by which courts supervise the actions and decisions of public authorities to ensure they act lawfully, including in accordance with human rights.
Remedies Available
Remedies are set out in section 8 HRA and reflect the range of public law remedies:
- Quashing orders: Set aside or invalidate unlawful decisions.
- Mandatory orders: Require the authority to perform a legal duty.
- Prohibiting orders: Prevent the authority from taking unlawful action.
- Declarations: An official court statement as to the parties' rights or the lawfulness of the authority’s conduct.
- Damages: May be awarded for a breach only if necessary to afford just satisfaction and as a last resort. The amount and basis follow ECtHR principles and are generally modest.
The grant of remedies is discretionary. Courts will consider all relevant factors, including the claimant’s conduct, the impact of the breach, and whether another legal route is available. Not every technical breach will result in an award of damages.
Worked Example 1.3
A police force receives credible intelligence that a vulnerable individual is at risk from a known aggressor. The police fail to take any adequate steps to mitigate the risk. The individual is severely harmed. The victim claims a breach of Article 2 (right to life).
Answer:
The court examines whether the police, knowing or having reason to know of a real and immediate risk, took reasonable measures to protect life. If not, this failure engages Article 2 and may entitle the individual to an appropriate remedy—potentially including damages—if this is necessary to secure just satisfaction.
Limits and Defences
A public authority is not liable for acting incompatibly with the Convention if:
- Primary legislation required the authority to act as it did and there was no other way to comply; or
- It was, in the circumstances, giving effect to or enforcing a provision of legislation found to be incompatible, and could not have acted differently.
Authorities must always seek to interpret and apply legislation compatibly with the HRA. Only if no alternative exists and compliance would be impossible is the defence under s.6(2) HRA available.
The Role of the Courts
Courts play a dual role under the HRA:
- Interpreting and, so far as possible, applying legislation in a manner compatible with Convention rights (s.3).
- Providing judicial remedies for breaches of human rights and, where permitted, issuing declarations of incompatibility when Parliament must legislate to bring UK law into compliance.
The courts also set the boundaries for legitimate decision-making by public authorities, exercising rigorous scrutiny under proportionality. This ensures legislative and executive bodies remain within the human rights framework, while preserving respect for parliamentary sovereignty.
The Human Rights Act and Secondary Legislation
While the HRA primarily aims to secure the compatibility of primary legislation, secondary (delegated) legislation which is incompatible with the Convention and not required by primary legislation may be declared invalid by the courts (unlike the position for Acts of Parliament themselves). Thus, if a statutory instrument is incompatible and is not compelled by its parent statute, it may be quashed.
Practical Effect of the HRA
Through these mechanisms, the HRA has fundamentally altered the relationship between individuals and the state in UK public law. Public authorities are subject to direct duties under the Convention, forming part of a constitutional culture of rights-respecting administration. Courts are empowered as guardians of fundamental rights, ensuring that both public administration and Parliament are held to account for unjustified interferences with basic freedoms.
Summary
- The Human Rights Act 1998 makes most ECHR rights directly enforceable in UK courts and applies to public authorities (core and hybrid) carrying out public functions.
- Section 6 HRA imposes both negative and, where relevant, positive obligations on public authorities regarding Convention rights.
- The principle of proportionality is central to the assessment of any restriction on qualified rights, requiring a fair balance and no more intrusion than necessary.
- Courts are obligated to interpret legislation compatibly with the ECHR so far as it is possible to do so (s.3 HRA). If not possible, they may issue a section 4 declaration of incompatibility, which does not invalidate legislation but prompts political and legal reform.
- Only 'victims'—those directly and personally affected—have standing to bring claims under the HRA. Pressure groups generally lack standing unless also victims.
- Judicial review remains the principal mechanism for challenging unlawful acts by public authorities, with remedies including mandatory and quashing orders, declarations, and—where necessary—damages.
- Public authorities have a statutory defence only where their actions were strictly and unavoidably required by incompatible primary legislation.
- The courts have a constitutional role both in safeguarding rights and in balancing human rights with the continuing sovereignty of Parliament.
Key Point Checklist
This article has covered the following key knowledge points:
- The Human Rights Act 1998 incorporates most ECHR rights into UK law and applies to a wide range of public bodies and functions.
- Public authorities under the HRA include core authorities and, in relation to public functions, certain hybrid bodies. The nature of the act performed is decisive.
- Obligations under the HRA include both negative and positive duties to secure effective enjoyment of rights.
- Qualified convention rights may be interfered with only if the interference pursues a legitimate aim, is prescribed by law, is necessary in a democratic society, and is proportionate.
- Section 3 HRA requires courts to interpret all legislation as far as possible compatibly with Convention rights; section 4 declarations of incompatibility are a last resort and do not strike down legislation.
- Only a victim, directly and personally affected, can bring proceedings under the HRA.
- Remedies available include quashing or prohibitory orders, declarations, and, if necessary, damages. Remedies are discretionary and must afford just satisfaction.
- Public authorities are not liable under s.6 HRA if constrained strictly and unavoidably by primary legislation.
- The courts supervise public authority actions under both traditional administrative law grounds and new human rights grounds, safeguarding the individual's position against the state.
Key Terms and Concepts
- Human Rights Act 1998 (HRA)
- public authority
- positive obligation
- proportionality
- declaration of incompatibility
- victim
- judicial review