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 duty of courts to interpret legislation compatibly with Convention rights, outline the process and effect of declarations of incompatibility, and apply the proportionality test in judicial review of public authority decisions. You will also be able to identify key terms and apply these principles to SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the Human Rights Act 1998 and its relationship with the European Convention on Human Rights, focusing on the interpretation of legislation and the impact on judicial review. In your revision, pay particular attention to:
- the requirement for courts to interpret legislation compatibly with Convention rights (HRA s 3)
- the process and effect of declarations of incompatibility (HRA s 4)
- the role of proportionality in judicial review of public authority decisions involving human rights
- the limits of statutory interpretation under the HRA
- the continuing relevance of the HRA post-Brexit
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 duty of UK courts under section 3 of the Human Rights Act 1998 when interpreting legislation?
- What is a declaration of incompatibility under the HRA, and what is its legal effect?
- When is the proportionality test applied in judicial review under the HRA?
- Can a court rewrite legislation to make it compatible with the ECHR if the wording is clear and Parliament’s intention is explicit?
Introduction
The Human Rights Act 1998 (HRA) brings the rights set out in the European Convention on Human Rights (ECHR) into UK law. The HRA requires all public authorities, including courts, to act compatibly with Convention rights. A key feature of the HRA is the duty placed on courts to interpret all legislation, as far as possible, in a way that is compatible with those rights. When this is not possible, higher courts may issue a declaration of incompatibility, highlighting the inconsistency to Parliament. This article explains these mechanisms and their practical impact, including the use of proportionality in judicial review.
Statutory Interpretation under the Human Rights Act
The Section 3 Duty: Interpreting Legislation Compatibly with Convention Rights
Section 3 of the HRA requires UK courts to interpret all primary and secondary legislation, so far as it is possible, in a way that is compatible with the rights set out in the ECHR. This duty applies to all legislation, whenever enacted.
Key Term: Section 3 Duty
The obligation on UK courts to interpret legislation, as far as possible, in a way that is compatible with Convention rights.
This interpretative obligation is strong and may require courts to depart from the literal meaning of statutory words or to read in additional words, provided this does not contradict the fundamental purpose of the legislation.
Limits of the Section 3 Duty
The courts cannot go so far as to rewrite legislation or adopt an interpretation that is inconsistent with the clear intention of Parliament. If the statutory language is explicit and Parliament’s intention is clear, and compatibility cannot be achieved through interpretation, the court must apply the statute as enacted.
Worked Example 1.1
A statute prohibits the admission of certain evidence in criminal trials. The defendant claims that excluding this evidence would breach their right to a fair trial under Article 6 ECHR. Can the court interpret the statute to allow the evidence?
Answer: The court must first try to interpret the statute compatibly with Article 6, even if this requires a purposive approach. If it is possible to interpret the statute to allow the evidence in order to ensure a fair trial, the court should do so. However, if the statutory wording is clear and Parliament’s intention is explicit, and compatibility cannot be achieved without contradicting the statute, the court must apply the law as written.
Declarations of Incompatibility
Section 4: When Interpretation Is Not Possible
If it is not possible to interpret legislation compatibly with Convention rights under section 3, section 4 allows the High Court, Court of Appeal, or Supreme Court to make a declaration of incompatibility.
Key Term: Declaration of Incompatibility
A formal statement by a higher court that a provision of legislation is incompatible with a Convention right.
A declaration of incompatibility does not invalidate the legislation. The law remains in force until Parliament decides whether to amend or repeal it. However, such declarations often prompt legislative change.
Worked Example 1.2
A statute defines marriage as between a man and a woman. A court is asked to interpret this provision compatibly with Article 8 (private life) and Article 12 (right to marry) ECHR. Can the court reinterpret the statute to include same-sex couples?
Answer: If reinterpreting the statute to include same-sex couples would contradict the clear intention of Parliament, the court cannot do so under section 3. Instead, the court may issue a declaration of incompatibility under section 4, signalling to Parliament that the law is inconsistent with Convention rights.
Judicial Review and the Human Rights Act
Human Rights as a Ground for Judicial Review
The HRA has expanded the grounds for judicial review. In addition to traditional grounds (illegality, irrationality, procedural impropriety), a public authority’s action may be challenged for incompatibility with a Convention right.
Key Term: Proportionality
The requirement that any interference with a Convention right must be no more than necessary to achieve a legitimate aim, and a fair balance must be struck between individual rights and the interests of the community.
The proportionality test is central to judicial review of decisions affecting qualified rights (such as Articles 8, 9, 10, and 11 ECHR).
The Proportionality Test
When reviewing a public authority’s interference with a qualified Convention right, courts apply the proportionality test. The court asks:
- Is the objective sufficiently important to justify limiting the right?
- Is the measure rationally connected to the objective?
- Could a less intrusive measure have been used?
- Has a fair balance been struck between the individual's rights and the interests of the community?
Worked Example 1.3
A local authority bans all protests in a public square to prevent disruption. Protesters claim this breaches their Article 11 right to freedom of assembly. How will the court assess this?
Answer: The court will apply the proportionality test: Is the ban prescribed by law and in pursuit of a legitimate aim (e.g., public order)? Is the ban no more than necessary? Could less restrictive measures have been used? Does the ban strike a fair balance between the protesters’ rights and the interests of the community? If the ban is disproportionate, the court may find a breach of Article 11.
The HRA and Parliamentary Sovereignty
The HRA preserves parliamentary sovereignty. Courts cannot strike down or refuse to apply Acts of Parliament, even if they are incompatible with Convention rights. The court’s role is to interpret legislation compatibly where possible (section 3), or to issue a declaration of incompatibility (section 4) if not.
The HRA after Brexit
The HRA remains in force after the UK’s exit from the EU. The ECHR is not part of EU law, and the UK continues to be bound by the Convention. UK courts must still interpret legislation compatibly with Convention rights and may issue declarations of incompatibility.
Key Point Checklist
This article has covered the following key knowledge points:
- The Human Rights Act 1998 incorporates the ECHR into UK law and requires courts to interpret legislation compatibly with Convention rights where possible.
- Section 3 HRA imposes a strong interpretative duty, but courts cannot rewrite legislation or contradict clear parliamentary intent.
- If compatibility cannot be achieved, higher courts may issue a declaration of incompatibility under section 4 HRA.
- Declarations of incompatibility do not invalidate legislation but often prompt parliamentary review.
- The HRA expands judicial review grounds to include compatibility with Convention rights.
- The proportionality test is used in judicial review of public authority decisions affecting qualified rights.
- The HRA preserves parliamentary sovereignty: courts cannot strike down Acts of Parliament.
- The HRA continues to apply post-Brexit; the ECHR remains binding on the UK.
Key Terms and Concepts
- Section 3 Duty
- Declaration of Incompatibility
- Proportionality
