Learning Outcomes
After reading this article, you will be able to explain the structure and effect of the Human Rights Act 1998 (HRA), including how UK courts must interpret legislation in line with the European Convention on Human Rights (ECHR), the process for declarations of incompatibility, the obligations of public authorities, and the remedies available for breaches. You will also be able to apply these principles to realistic SQE1-style scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the Human Rights Act 1998 and its relationship with the ECHR, focusing on the following key areas. In your revision, pay particular attention to:
- the requirement for UK courts to take into account Strasbourg case law (Section 2 HRA)
- the duty to interpret legislation compatibly with Convention rights (Section 3 HRA)
- the process and effect of declarations of incompatibility (Section 4 HRA)
- the definition and duties of public authorities (Section 6 HRA)
- who can bring proceedings and the meaning of "victim" (Section 7 HRA)
- the remedies available for breaches of Convention rights (Section 8 HRA)
- the remedial order procedure for amending legislation (Section 10 HRA)
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 must UK courts do when interpreting legislation that may affect Convention rights under the HRA?
- What is a declaration of incompatibility, and what is its legal effect?
- Who is considered a "victim" for the purposes of bringing proceedings under the HRA?
- What remedies can a court award if a public authority breaches a Convention right?
- How can a minister respond to a declaration of incompatibility under the HRA?
Introduction
The Human Rights Act 1998 (HRA) incorporates most rights from the European Convention on Human Rights (ECHR) into UK law. The Act sets out how courts must interpret legislation, the duties of public authorities, who can bring proceedings, and what remedies are available. Understanding the operation of key sections—especially sections 2, 3, 4, 6, 7, 8, and 10—is essential for SQE1.
The Role of Strasbourg Case Law: Section 2 HRA
Section 2 requires UK courts to "take into account" judgments, decisions, and opinions of the European Court of Human Rights (ECtHR) when determining questions about Convention rights. Courts are not strictly bound by ECtHR decisions but should 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 and decisions from the European Court of Human Rights, which UK courts must consider under section 2 HRA.
Interpreting Legislation: Section 3 HRA
Section 3 obliges courts to interpret all primary and secondary legislation, so far as possible, in a way that is compatible with Convention rights. This duty applies to all legislation, whenever enacted. Courts may read in or strain the language of a statute to achieve compatibility, but cannot override clear statutory wording or change the fundamental meaning of the legislation.
Key Term: Section 3 interpretation
The requirement for courts to interpret legislation compatibly with Convention rights, unless it is impossible to do so.
Worked Example 1.1
A statute says only "spouses" can inherit a tenancy. A same-sex partner is refused succession. How should the court approach this under the HRA?
Answer: The court must use section 3 HRA to interpret "spouse" compatibly with Convention rights, especially Article 14 (non-discrimination) and Article 8 (private/family life). If possible, the court should interpret "spouse" to include same-sex partners.
Declarations of Incompatibility: Section 4 HRA
If it is not possible to interpret legislation compatibly with Convention rights, certain higher courts (e.g., High Court, Court of Appeal, Supreme Court) may issue a declaration of incompatibility under section 4. This declaration does not invalidate the legislation but signals to Parliament that the law is inconsistent with the ECHR.
Key Term: Declaration of incompatibility
A formal statement by a higher court that a statute cannot be interpreted compatibly with Convention rights, without affecting the statute's validity.
Worked Example 1.2
A statute requires the Home Secretary, not a judge, to set minimum prison terms. The court finds this breaches Article 6 (fair trial). What can the court do?
Answer: The court may issue a declaration of incompatibility under section 4 HRA, alerting Parliament to the inconsistency but leaving the law in force until Parliament acts.
Duties of Public Authorities: Section 6 HRA
Section 6 makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless required by primary legislation. Public authorities include government departments, local authorities, courts, and any person or body performing public functions.
Key Term: Public authority
Any body or person performing functions of a public nature, including courts and government departments, bound by the HRA.
Exam Warning
Section 6 does not apply if the public authority could not have acted differently due to primary legislation. In such cases, the authority is not liable for breaching the HRA.
Who Can Bring Proceedings: Section 7 HRA
Section 7 allows a "victim" of an unlawful act by a public authority to bring proceedings in a UK court or rely on Convention rights in any legal proceedings. The person must be directly affected by the alleged breach.
Key Term: Victim
A person directly affected by an alleged breach of a Convention right, as defined by Article 34 ECHR, and entitled to bring proceedings under section 7 HRA.
Proceedings must generally be brought within one year of the act complained of, unless the court considers it equitable to allow a longer period.
Remedies for Breach: Section 8 HRA
Section 8 empowers courts to grant any remedy they consider "just and appropriate" if a public authority has acted unlawfully under section 6. Remedies may include damages, injunctions, or other orders, but must be proportionate and consistent with ECtHR principles.
Key Term: Just satisfaction
The principle that a remedy for breach of a Convention right should be fair and appropriate, reflecting ECtHR standards.
Worked Example 1.3
A local authority unlawfully evicts a tenant, breaching Article 8 (private/family life). What remedies can the court grant?
Answer: The court may order reinstatement, grant an injunction, and/or award damages if necessary to provide just satisfaction.
Remedial Orders: Section 10 HRA
Section 10 allows a minister to amend legislation by remedial order if a court has made a declaration of incompatibility or the ECtHR has found UK law incompatible with the Convention. Remedial orders are a form of delegated legislation and must be approved by Parliament.
Key Term: Remedial order
A statutory instrument used by a minister to amend legislation quickly in response to a declaration of incompatibility or an adverse ECtHR judgment.
Revision Tip
Declarations of incompatibility do not force Parliament to change the law, but there is usually political pressure to do so. Remedial orders provide a faster route for urgent changes.
Summary
The Human Rights Act 1998 requires UK courts to consider Strasbourg case law, interpret legislation compatibly with Convention rights where possible, and empowers higher courts to issue declarations of incompatibility if compatibility is impossible. Public authorities must not act contrary to Convention rights, and victims can bring proceedings in UK courts for just satisfaction. Ministers can use remedial orders to amend incompatible legislation quickly, but only Parliament can ultimately change the law.
Key Point Checklist
This article has covered the following key knowledge points:
- Section 2 HRA requires courts to take Strasbourg case law into account but does not bind them.
- Section 3 HRA obliges courts to interpret legislation compatibly with Convention rights where possible.
- Section 4 HRA allows higher courts to declare legislation incompatible, without invalidating it.
- Section 6 HRA makes it unlawful for public authorities to act incompatibly with Convention rights.
- Section 7 HRA allows "victims" to bring proceedings in UK courts for HRA breaches.
- Section 8 HRA enables courts to grant just and appropriate remedies, including damages.
- Section 10 HRA permits ministers to make remedial orders to amend incompatible legislation.
Key Terms and Concepts
- Strasbourg jurisprudence
- Section 3 interpretation
- Declaration of incompatibility
- Public authority
- Victim
- Just satisfaction
- Remedial order
