Human Rights Act 1998 and the European Convention on Human Rights - Impact of the Human Rights Act on UK law

Learning Outcomes

After reading this article, you will be able to explain how the Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law, describe the interpretative obligation on courts under s 3 HRA, outline the effect of a declaration of incompatibility under s 4 HRA, and identify the duties imposed on public authorities by s 6 HRA. You will be able to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand the impact of the Human Rights Act 1998 on UK law and practice. Focus your revision on:

• The mechanism by which the HRA incorporates ECHR rights into UK law.
• The interpretative duty on courts under s 3 HRA.
• The nature and effect of declarations of incompatibility under s 4 HRA.
• The definition of public authorities and their obligations under s 6 HRA.
• 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.

1. What must a UK court do under s 3 HRA when interpreting primary legislation?
2. What is the legal effect of a declaration of incompatibility under s 4 HRA?
3. Which bodies are subject to the duty to act compatibly with Convention rights under s 6 HRA?
4. Can a private company running a public service be a 'public authority' under the HRA?

Introduction

The Human Rights Act 1998 (HRA) fundamentally changed the relationship between UK law and the European Convention on Human Rights (ECHR). Before the HRA, individuals could only enforce ECHR rights against the UK by applying to the European Court of Human Rights in Strasbourg, usually after exhausting all domestic remedies. The HRA 'brought rights home', enabling individuals to rely on Convention rights in UK courts and tribunals. This article explains the main ways the HRA achieves this and the resulting impact on UK law, focusing on statutory interpretation, declarations of incompatibility, and the obligations of public authorities.

Key Term: Human Rights Act 1998 (HRA)
The Act of Parliament that gives effect to specified ECHR rights in UK law, allowing individuals to enforce those rights in UK courts.

Key Term: European Convention on Human Rights (ECHR)
An international treaty, drafted by the Council of Europe, that sets out fundamental civil and political rights and freedoms.

Incorporation of Convention Rights

Section 1 HRA lists the ECHR Articles and Protocols that are given effect in UK law. These 'Convention rights' include the right to life, prohibition of torture, right to liberty, right to a fair trial, respect for private and family life, freedom of religion, expression, and assembly, among others.

Taking Account of Strasbourg Case Law

Section 2 HRA requires UK courts to 'take into account' judgments and decisions of the European Court of Human Rights (ECtHR) when determining questions relating to a Convention right. UK courts are not strictly bound by ECtHR decisions, but generally follow clear and consistent Strasbourg jurisprudence unless there is a strong reason not to do so.

Key Term: Strasbourg Jurisprudence
The body of case law developed by the European Court of Human Rights interpreting the ECHR.

Interpreting Legislation Compatibly (s 3 HRA)

Section 3(1) HRA imposes a duty on all UK courts and tribunals to read and give effect to primary and secondary legislation in a way that is compatible with Convention rights, 'so far as it is possible to do so'. This applies to all legislation, whenever enacted.

Key Term: Interpretative Obligation (s 3 HRA)
The requirement for UK courts to interpret legislation compatibly with Convention rights, unless it is impossible to do so.

This interpretative obligation is powerful. Courts must strive to find a meaning consistent with Convention rights, even if it means departing from the ordinary or literal meaning of the words, or reading in additional words. However, courts cannot use s 3 to adopt a meaning that is inconsistent with a fundamental feature of the legislation or that would go against clear Parliamentary intent.

Worked Example 1.1

A statute states that only a 'spouse' can succeed to a tenancy. A same-sex partner applies to succeed after the tenant's death. Can the court interpret 'spouse' to include same-sex partners under s 3 HRA?

Answer: Yes. The court must interpret the statute compatibly with Convention rights, including the right to respect for private and family life and non-discrimination. Following the approach in Ghaidan v Godin-Mendoza, the court can 'read down' 'spouse' to include same-sex partners, if this is possible without contradicting the statute's core purpose.

Exam Warning

Section 3 HRA does not allow courts to rewrite legislation or adopt a meaning inconsistent with the statute's fundamental features. If a compatible interpretation is not possible, the court cannot use s 3 to change the law.

Declarations of Incompatibility (s 4 HRA)

If a higher court (the High Court, Court of Appeal, or Supreme Court) finds that it is impossible to interpret legislation compatibly with a Convention right, it may make a declaration of incompatibility under s 4 HRA.

Key Term: Declaration of Incompatibility (s 4 HRA)
A formal statement by a higher court that a provision of primary legislation is incompatible with a Convention right. It does not invalidate the legislation.

A declaration of incompatibility does not affect the validity, operation, or enforcement of the legislation. Parliament is not required to amend the law, but political pressure usually leads to reform. The government may use a fast-track procedure (a 'remedial order') under s 10 HRA to amend the law following a declaration.

Worked Example 1.2

A statute gives the Home Secretary the power to set the minimum term for life sentence prisoners. A prisoner claims this violates their right to a fair trial by an independent tribunal. The Supreme Court agrees but finds the statute's wording is clear and cannot be interpreted compatibly under s 3. What can the court do?

Answer: The court can issue a declaration of incompatibility under s 4 HRA. This does not change the law but signals to Parliament that reform is needed.

Duty on Public Authorities (s 6 HRA)

Section 6(1) HRA makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless primary legislation makes it impossible to act differently (s 6(2)). This duty applies to courts, tribunals, and any person or body performing functions of a public nature.

Key Term: Public Authority (s 6 HRA)
Any court, tribunal, or person whose functions are of a public nature. Includes private bodies when performing public functions.

This means individuals can bring claims against public authorities for breaches of Convention rights directly in UK courts, often by way of judicial review.

Revision Tip

When deciding if a body is a 'public authority', focus on the nature of the function being performed, not just the legal status of the body. Private companies delivering public services under contract may be public authorities for those functions.

Worked Example 1.3

A local authority introduces a housing policy that indirectly discriminates against a minority group. Can an affected resident challenge the policy under the HRA?

Answer: Yes. The local authority is a public authority under s 6 HRA. If its policy is incompatible with Convention rights, the resident can bring a claim in the UK courts.

Remedies for Breach (s 8 HRA)

If a court finds that a public authority has acted unlawfully under s 6 HRA, it may grant any relief or remedy within its powers as it considers just and appropriate, including damages if necessary for 'just satisfaction'. The court will consider ECtHR principles when deciding whether to award damages.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• The HRA 1998 gives effect to ECHR rights in UK law, allowing individuals to enforce them in UK courts.
• UK courts must interpret legislation compatibly with Convention rights where possible (s 3 HRA).
• If compatible interpretation is impossible, higher courts can issue a declaration of incompatibility (s 4 HRA), which does not invalidate the law.
• Public authorities (including private bodies performing public functions) must act compatibly with Convention rights (s 6 HRA).
• Individuals can bring claims against public authorities for breaches of Convention rights in UK courts.
• Courts can grant remedies, including damages, for breaches if just and appropriate (s 8 HRA).
• Parliamentary sovereignty is preserved: declarations of incompatibility do not strike down legislation.

Key Terms and Concepts

• Human Rights Act 1998 (HRA)
• European Convention on Human Rights (ECHR)
• Strasbourg Jurisprudence
• Interpretative Obligation (s 3 HRA)
• Declaration of Incompatibility (s 4 HRA)
• Public Authority (s 6 HRA)