## Introduction

The Human Rights Act 1998 (HRA) made the rights in the European Convention on Human Rights (ECHR) part of UK law. It gives courts duties when public decisions affect Convention rights and provides structured tools to test whether those decisions can stand. Since 2000, judicial review has not only asked whether a decision was lawful and fair; it has also asked whether it was compatible with protected rights.

This guide explains how the HRA shapes judicial review today. It covers proportionality, the duty to read legislation compatibly where possible, declarations of incompatibility, and who counts as a public authority. It also sets out the role of Strasbourg case law, the UK approach to deference, and the continuing importance of common law rights. Key Supreme Court and House of Lords decisions show how these principles work in practice.

## What You'll Learn

- How proportionality works and how it differs from Wednesbury unreasonableness
- The role of section 2 HRA and when UK courts may depart from Strasbourg authority
- How to use section 3 HRA to read legislation compatibly with rights, and the limits of that duty
- When a section 4 declaration of incompatibility is appropriate and what follows
- Which bodies are “public authorities” under section 6, and the scope of the section 6(2) defence
- Standing, time limits, and remedies under sections 7 and 8 HRA
- The margin of appreciation at Strasbourg and the UK’s “discretionary area of judgment”
- Key cases: Bank Mellat (No 2), Ghaidan v Godin-Mendoza, Belmarsh, Nicklinson, and Osborn

## Core Concepts

### Proportionality in rights review

Before the HRA, the intensity of review in most cases was framed by Wednesbury unreasonableness. Rights cases now use proportionality, a more structured and transparent test. Important authorities include:

- R (Daly) v Secretary of State for the Home Department [2001] UKHL 26
- Huang v Secretary of State for the Home Department [2007] UKHL 11
- Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

In Bank Mellat, the Supreme Court set out a four-stage test:

1. Is the objective sufficiently important to justify limiting a right?
2. Is the measure rationally connected to that objective?
3. Could a less intrusive measure have been used?
4. Does the measure strike a fair balance between individual rights and the community interest?

The intensity applied can vary with context (for example, national security, immigration control, or economic policy). The court will still look for evidence: a clear statement of aims, reasons, and consideration of alternatives.

### Section 2 HRA and Strasbourg case law

Section 2 requires UK courts to “take into account” judgments of the European Court of Human Rights. The early “mirror” approach in R (Ullah) v Special Adjudicator [2004] UKHL 26 suggested UK courts should keep pace with Strasbourg, not run ahead. Later cases show a more flexible position:

- Horncastle [2009] UKSC 14: the Supreme Court declined to follow a Chamber judgment on hearsay, giving detailed reasons and later prompting a Grand Chamber shift.
- Manchester City Council v Pinnock [2010] UKSC 45: confirmed that courts should generally follow clear Grand Chamber guidance, but may explain why domestic law takes a different path where appropriate.

The current approach: give great weight to clear, consistent Strasbourg authority, but depart where there is strong reason and careful analysis.

### Section 3 HRA interpretation

Section 3 requires courts to interpret primary and secondary legislation compatibly with Convention rights “so far as it is possible to do so.” This may involve reading words in, reading words out, or adopting a strained meaning—within limits.

Key cases:

- Ghaidan v Godin-Mendoza [2004] UKHL 30: the House of Lords interpreted the Rent Act 1977 to include same-sex partners as “spouses” for succession purposes. This avoided discrimination without rewriting the scheme.
- Re S (Minors) [2002] UKHL 10: section 3 cannot be used to recast a statutory scheme where that would contradict a central feature or create new functions.
- R v A (No 2) [2001] UKHL 25: reading words into the Youth Justice and Criminal Evidence Act to permit necessary cross-examination, showing how section 3 can operate in criminal procedure.
- HM Treasury v Ahmed [2010] UKSC 2; Bellinger v Bellinger [2003] UKHL 21: where compatibility would require creating new powers or changing a fundamental policy, section 3 cannot be stretched that far.

In practice, always try a section 3 solution first. If that would contradict the statute’s scheme or purpose, move to section 4.

### Section 4 HRA declarations of incompatibility

Where compatible interpretation is not possible, certain higher courts may issue a declaration that primary legislation is incompatible with a Convention right. This does not strike down the law. It signals a problem for Parliament to address, often followed by amendment or a remedial order under section 10.

Examples:

- A v Secretary of State for the Home Department (Belmarsh) [2004] UKHL 56: indefinite detention of foreign nationals without trial under the Anti-terrorism, Crime and Security Act 2001 was declared incompatible with Articles 5 and 14. Parliament replaced the scheme with control orders.
- R (F and Thompson) v Secretary of State for the Home Department [2010] UKSC 17: indefinite notification requirements for sex offenders were incompatible; a review mechanism followed.
- R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32: restricting civil partnerships to opposite-sex couples was incompatible with Article 14 read with Article 8; legislation later changed.

A declaration carries political and legal weight, but the elected branches decide the response.

### Public authorities, standing and remedies (sections 6–8)

- Section 6: It is unlawful for a public authority to act incompatibly with a Convention right unless primary legislation requires it (section 6(2)). “Public authority” includes courts and core state bodies, and can include private bodies when performing public functions (hybrid authorities).
  - Aston Cantlow [2003] UKHL 37: drew a line between core public authorities (always bound) and hybrids (bound only when exercising public functions).
  - YL v Birmingham City Council [2007] UKHL 27 and Poplar Housing [2001] EWCA Civ 595; Weaver v London & Quadrant [2009] EWCA Civ 587: tests for hybrid status turn on statutory context, control, and public character of the function.
- Section 7: Only a “victim” may bring an HRA claim; the time limit is one year (subject to equitable extension). This is narrower than ordinary judicial review standing.
- Section 8: Remedies are “just and appropriate,” including damages where necessary to afford just satisfaction. Damages are not automatic.
  - R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14: HRA is not a tort statute; vindication of rights is the focus.
  - Anufrijeva v Southwark LBC [2003] EWCA Civ 1406: damages may reflect distress and loss of dignity where appropriate.

Judicial review remedies (quashing orders, declarations, mandatory orders) remain available and are often the primary route to put matters right.

### Margin of appreciation and domestic deference

The margin of appreciation is a Strasbourg doctrine. UK courts do not apply it domestically. Instead, they assess the proper “discretionary area of judgment” and the court’s institutional role. Relevant factors include the subject matter (e.g., national security, social policy), the quality of parliamentary scrutiny, and the evidential basis for the measure.

- R (Begum) v Denbigh High School [2006] UKHL 15: careful assessment of proportionality in a sensitive educational setting.
- Animal Defenders International v UK (2013) 57 EHRR 21: the Grand Chamber placed weight on UK parliamentary scrutiny of the blanket ban on political advertising.
- R (Nicklinson) v Ministry of Justice [2014] UKSC 38: assisted dying raises moral and ethical questions for Parliament; the Court stopped short of a declaration at that stage, while recognising the gravity of the rights at stake.

### Common law rights and the principle of legality

Alongside the HRA, common law rights remain powerful. Where Parliament intends to curtail basic rights, it must use clear words.

- R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115: prisoners’ access to journalists could not be restricted by rules absent clear statutory authority.
- Osborn v Parole Board [2013] UKSC 61: the Parole Board’s duty to hold an oral hearing was grounded in common law fairness; HRA analysis was not required to reach that result.
- Kennedy v Charity Commission [2014] UKSC 20; R (Unison) v Lord Chancellor [2017] UKSC 51: courts may resolve cases on common law grounds, preserving flexibility and avoiding section 7 hurdles where possible.

The choice between common law and HRA routes can affect standing, time limits, and remedies.

## Key Examples or Case Studies

### Bank Mellat v HM Treasury (No 2) [2013] UKSC 39

- Issue: Whether directions under the Counter-Terrorism Act 2008 restricting dealings with an Iranian bank were proportionate.
- Outcome: The directions were quashed as disproportionate.
- Why it matters: The Court articulated a clear four-stage proportionality test and applied demanding scrutiny even in a sensitive policy area.

### Ghaidan v Godin-Mendoza [2004] UKHL 30

- Issue: Whether a same-sex partner could succeed to a statutory tenancy as a “spouse” under the Rent Act 1977.
- Outcome: The House of Lords interpreted the Act compatibly with Articles 8 and 14 to include same-sex partners.
- Why it matters: Shows the reach of section 3, while staying within the grain of the statute.

### A v Secretary of State for the Home Department (Belmarsh) [2004] UKHL 56

- Issue: Indefinite detention without trial of foreign nationals suspected of terrorism.
- Outcome: Declaration of incompatibility with Articles 5 and 14.
- Why it matters: Section 4 in action, followed by legislative change. Also demonstrates how discrimination can arise when a severe measure targets only a subset.

### R (Nicklinson) v Ministry of Justice [2014] UKSC 38

- Issue: Whether the ban on assisting suicide breached Article 8.
- Outcome: No declaration at that time; the Court emphasised the role of Parliament but left open the prospect of future judicial action.
- Why it matters: Frames the boundary between court and legislature in ethically charged settings and explains domestic deference.

### Osborn v Parole Board [2013] UKSC 61

- Issue: Whether prisoners were entitled to oral hearings before the Parole Board.
- Outcome: Yes, on common law fairness grounds; Convention rights supported the same conclusion.
- Why it matters: Highlights the continued strength of common law rights and practical benefits of using them alongside, or instead of, HRA arguments.

## Practical Applications

- Map the right and the interference
  - Identify the relevant Article(s) and whether there is an interference.
  - Confirm whether the measure pursues a legitimate aim listed in the Convention.
- Prepare a proportionality analysis
  - Set out the objective, evidence of risk or need, and why the measure is rationally connected.
  - Consider alternatives and record why less restrictive options were rejected.
  - Balance individual impact against benefits; explain why the measure is necessary.
- Use section 3 before section 4
  - Test whether a compatible reading is possible without contradicting the statute’s core features.
  - If not, consider whether to seek a section 4 declaration (in a court with that power).
- Check public authority status and the section 6(2) defence
  - Is the defendant a core public body or a hybrid acting in a public function?
  - If the act was required by primary legislation, the section 6(2) defence may apply.
- Choose the right route, forum, and timing
  - Judicial review time limit: promptly and within three months.
  - HRA claims: one year from the act (section 7(5)), subject to equitable extension.
  - Consider whether a common law claim (fairness, reasonableness, legality) can secure the outcome without section 7 constraints.
- Remedies strategy
  - Seek quashing or mandatory orders to correct decisions, and declarations to clarify rights.
  - Damages under section 8 only where necessary for just satisfaction; provide evidence of actual loss or serious distress.
- For public bodies
  - Build rights assessments into decision-making templates.
  - Keep records showing aims, options considered, and reasons for the chosen measure.
  - Monitor Strasbourg and domestic authority relevant to your functions and update policies.

## Summary Checklist

- Identify the relevant Convention right(s) and whether there is interference
- Confirm legitimate aim(s) and apply all four limbs of the Bank Mellat test
- Attempt a section 3 compatible interpretation before seeking section 4
- Consider section 6(2): was the act required by primary legislation?
- Verify public authority status (core or hybrid) and claimant standing as a “victim”
- Check time limits: three months for JR; one year for HRA claims
- Select remedies: quashing, declaration, mandatory order; damages only if justified
- Use common law rights where suitable (Simms, Osborn, Kennedy, Unison)
- Treat Strasbourg case law as persuasive and usually followed, but reasoned departures are possible (Horncastle, Pinnock)
- Record evidence and reasoning to support proportionality

## Quick Reference

| Concept                   | Authority                         | Key takeaway                                                |
| ------------------------- | --------------------------------- | ----------------------------------------------------------- |
| Proportionality test      | Bank Mellat (No 2) [2013] UKSC 39 | Four-stage analysis: aim, connection, alternatives, balance |
| Strasbourg case law       | HRA s2; Ullah; Horncastle         | Take into account; may depart with clear reasons            |
| Compatible interpretation | HRA s3; Ghaidan; Re S             | Read compatibly if possible; do not rewrite the scheme      |
| Incompatibility           | HRA s4; Belmarsh                  | Declaration signals issue; Parliament decides the fix       |
| Public authority          | HRA s6; Aston Cantlow; YL         | Core/hybrid bodies; s6(2) defence if statute compels act    |
| Remedies and timing       | HRA ss7–8; Greenfield             | “Victim” standing; one-year limit; damages not automatic    |

HRA and UK Judicial Review: Practical Impact and Key Cases