Context
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Political context
o Key element of Blair’s labour government – constitutional reforms (incl
devolution)
o Took office in 1997
o Act came into effect Oct 2 2000
Based on the ECHR
o European convention on Human rights
o Part of CoE
o European Court of Human Rights (ECtHR) in Strausberg
o Unconnected to Brexit
Pre HRA state
o 1965, Uk adopted the ‘right of individual petition’
 Individuals have been able to institute proceeds against the UK in the
ECtHR
 Art 19 of the ECHR – use of the ECtHR to ensure compliance
 However- cld not invoke the ECHR in domestic legal proceedings
o Common law rights
 No definitive list of such rights
 But focus was on process and access to courts
HRA and the Constitution
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Key driver of the shift from a more political to a more legal form of constitutionalism
Stops short of authorising courts to strike down acts of parliament
Ongoing existence of HR is dependent upon the restraint of the political branches
Enhance courts powers to review legality of admin action
Does not ultimately restrict UK parliaments legislative authority
o BUT lawmaking powers of the devolve legislatures are limited by the HRA
Gave the court’s jurisdiction to adjudicate on HR disputes
o Cannot be criticised as undemocratic- because it was conferred upon the
courts by parliament
HRA does not make the convention rights a substantive part of UK law
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when legislation is incompatible legislation remains valid because there is no
substantive inconsistency b/w it and the HRA
Scope
Section 6 – ‘It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.’
Section 7 – only a victim can bring a claim
Who is a victim
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Much more restrictive than JR ‘sufficient interest’
Direct victim
indirect victim
o Kurt v Turkey
Potential victim
Public authority meaning
Legal obligation of public authorities- to abide by and enforce
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Two categories of public authority
o Core public authorities
 Authorities that are bound by the convention rights in all they do
 Interpreted as narrow – government departments, local authorities, the
police and the armed forces
o Hybrid public authorities
 Only bound by HRA when they care committing acts that are not
‘private’
 Issue to decide is what is a public function
 Lord Bicholls per Aston Cantlow – consider IF
o The body is publicly funded, exercising statutory
powers, taking the place of central gov or local
authorities or providing a public service
HL - Aston Cantlow
o Leading case on what is a public authority
o Identified the two categories
What if its not a public authority
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Even if there is no duty under s6 – convention rights still relevant in 2 instances
Statutory relevance
o Whenever the relo b/w the parties is governed by statute, the court must
apply the statue in such a way as to secure compliance w relevant convention
rights
o Court’s statutory interpretive obligation operates whether or not a public
authority is involved
 IE Ghaidan case (landlord v statutory tenant)
Common law
o Less clear
o BUT an assumed duty to develop common law in light of ECHR
 Horizontal effect of HRA (debated)
The rights
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‘Convention rights’
Set out in ECHR
o Arts 2-12 and 14
o Arts 1-3 of the first protocol to the convention
o Art 1 of the 13th protocol
Focus is political and civil rights
o Rights that are likely to uphold the autonomy of the individual
o Considerations of equality being secondary
o Absence of any general anti-discrimination provisions
 art 14 closest- prohibits discrimination in relation to the enjoyment of
the freedoms conferred by other provisions.
 No economic rights
 No social rights (except art 2 first protocol right to education)
Section 1 of HRA ‘
In this Act “the Convention rights” means the rights and fundamental freedoms set out in—"
Provision
Art 2
Art 3
Art 4
Art 5
Art 6
Art 7
Art 8
Right/Prohibition
Right to Life
Limits
Prohibition of Torture
Prohibition of Slavery
and Forced Labour
Right to liberty and
security
Absolute right
Right to a fair trial
No Punishment without
law
Right to respect for
private and family life
Art 9
Freedom of thought,
conscience, and religion
Art 10
Freedom of express
Limited
a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a
riot or insurrection.
Absolute right
Limited
(a) person after conviction
(b) the lawful arrest
(d) a minor for the purpose of educational supervision
(e) the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
(f) prevent an unauthorised entry into the country or of a
person is being deportation or extradition.
Absolute right
Absolute right
Qualified
(2) There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and
freedoms of others.
Qualified
only to such limitations as are prescribed by law and are
necessary in a democratic society in the interests of
public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of
others.
Qualified
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the
protection of the reputation or rights of others, for
preventing the disclosure of information received in
Art 11
Freedom of assembly
and association
Art 12
Right to marry
Art 14
Prohibition of
discrimination
Art 1, First
protocol
Protection of property
Article 2,
First Protocol
Right to education
Article 3,
First Protocol
Right to free elections
Article 1,
Thirteenth
Protocol
Abolition of the death
penalty
confidence, or for maintaining the authority and
impartiality of the judiciary
Qualified
No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are
necessary in a democratic society in the interests of
national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or
for the protection of the rights and freedoms of others.
This Article shall not prevent the imposition of lawful
restrictions on the exercise of these rights by members of
the armed forces, of the police or of the administration of
the State.
Limited
Men and women of marriageable age have the right to
marry and to found a family, according to the national
laws governing the exercise of this right.
not kids or gays
Limited
without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion,
national or social origin, association with a national
minority, property, birth or other status.
Limited
except in the public interest and subject to the conditions
provided for by law and by the general principles of
international law. The preceding provisions shall not,
however, in any way impair the right of a State to enforce
such laws as it deems necessary to control the use of
property in accordance with the general interest or to
secure the payment of taxes or other contributions or
penalties.
the State shall respect the right of parents to ensure such
education and teaching in conformity with their own
religious and philosophical convictions.
The High Contracting Parties undertake to hold free
elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the
opinion of the people in the choice of the legislature.
No derogations
Key Provisions
Section 3- Interpretation of Legislation
1) 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.
2) This section—
a) applies to primary legislation and subordinate legislation whenever enacted;
b) does not affect the validity, continuing operation or enforcement of any incompatible
primary legislation (or secondary)
Section 4 – Declaration of incompatibility
1) If the court is satisfied that the provision is incompatible with a Convention right, it may
make a declaration of that incompatibility
4) If the court is satisfied— It may make a declaration of incompatibility
a) that the provision is incompatible with a Convention right, and
b) that (disregarding any possibility of revocation) the primary legislation concerned
prevents removal of the incompatibility
6) A declaration under this section (“a declaration of incompatibility”)—
a) does not affect the validity, continuing operation or enforcement of the provision in
respect of which it is given; and
b) is not binding on the parties to the proceedings in which it is made.
Section 6 – Acts of Public Authorities
Empowers courts to apply the HRA
1) It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
2) Subsection (1) does not apply to an act if—
a) as the result of one or more provisions of primary legislation, the authority could not
have acted differently; or
b) in the case of one or more provisions of, or made under, primary legislation which
cannot be read or given effect in a way which is compatible with the Convention
rights, the authority was acting so as to give effect to or enforce those provisions.
3) In this section “public authority” includes— but does not include either House of
Parliament or a person exercising functions in connection with proceedings in
Parliament.
a) a court or tribunal, and
b) any person certain of whose functions are functions of a public nature,
Section 7 – Proceedings
Gives individuals right to bring cases - BUT they have to show that they have been
personally affected (sim to JR)
A person who claims that a public authority has acted (or proposes to act) in a way which is
made unlawful by section 6(1) may— but only if he is (or would be) a victim of the unlawful
act.
a) bring proceedings against the authority under this Act in the appropriate court or
tribunal, or
b) rely on the Convention right or rights concerned in any legal proceedings,
Section 10 – power to take remedial action
An Henry VIII clause – fast track process to amend act after incompatible declaration.
After a declaration of incompatibility - (2) If a Minister of the Crown considers that there are
compelling reasons for proceeding under this section, he may by order make such
amendments to the legislation as he considers necessary to remove the incompatibility.
Section 19- statements of compatibility
1) A Minister of the Crown in charge of a Bill in either House of Parliament must,
before Second Reading of the Bill—
a) make a statement to the effect that in his view the provisions of the Bill are
compatible with the Convention rights (“a statement of compatibility”); or
b) make a statement to the effect that although he is unable to make a statement
of compatibility the government nevertheless wishes the House to proceed
with the Bill.
Enforcing HR
Act tries to protect rights- but making it more difficult to enact legislation that is inconsistent
w legislation
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Statement of compatibility (s 19)
o Minister responsible for the bill prior to second reading must
 Make a statement of compatibly OR
 Explain to parliament that she is unable to make a statement of
compatibility- but that parliament should enact the bill any way
o Joint committee on Human rights (JCHR)
 Joint select committee of the HC and the HL
 Scrutinises all bills and reports to Parliament on their HR implications
 Not always listened to, but their op. of compatibly = highly regarded
o BUT Illegal Migration Act 2023
 Government said that it was unable to make a statement of
compatibility BUT bill nevertheless enacted
 Made it so that people who arrived illegally will not be allowed to stayinstead detained and removed
Section 6
o Requires all public authorities to act compatibly with Convention rights
o UNLESS primary legalisation requires them to act incompatibly
  convention rights have become grounds of JR
 Extended courts JR powers
 When convention rights are involved- JR is more intense
 Proportionately NOT Wedesnbury test, used to determine
legality of any restricted placed by public authorities on QL
Other sources of review
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Courts
Parliament’s JCHR
Commissions
o The equality and Human Rights Commission (for England and Wales)
o The Scottish Human Rights commission
o The Northern Ireland Human Rights commission
The Interpretative Obligation
Looking at how an act ought to be interpreted
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Section 3 should be considered as an exception to the ordinary principles of statutory
interpretation. Can only be justified when the HRA 1998 applies
Normally interpretation is limited to when there is doubt to the meaning – BUT not
true for s3
AND HR trump traditional rules i.e. language rules (ejusdem etc)
Section 3, HRA 1998:
‘So far as is possible to do so, legislation and subordinate legislation must be read and
given effect in a way that is compatible with convention rights.’
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Requires judges to consider how to make it comply w HR primarily
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o The first aim of interpretation
Court gains this power under the HRA act
o can only be used in connection w cases that raise HR issues
Applies to both legislation already passed and future legislation
When a minister states that the provision is not compatible w the ECHR, courts could
ignore this and still interpret legislation if poss.
Restrictive: the courts should not artificially strain the meaning of statutory language
o so far as possible’
 Limits court power- clear that the court did not intend to allow courts to
strike down legislation
Expansive: oblige courts to achieve consistency with the convention
o Strong interpretative obligations under s 3
o Applies even if there are no ambiguities
Questions for when a court applies the powers
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If the HRA 1998 did not exist what would the natural meaning of the legislation be?
Would the natural meaning of the legislation identified earlier lead to an
incompatibility with one or more articles under the ECHR?
If the answer to the second question is ‘yes’ then is it possible to read the legislation
in such a way as to lead to this incompatibility being resolved?
R v A [2001] UKHL 25; [2002] 2 AC 45
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Facts
o The accused was charged with rape – wished to bring evidence of previous
consensual sexual relations with the complainant but precluded from doing so
by s41(1) and (3) of the Youth Justice and Criminal Evidence Act 1999.
Legal issue
o The accused argued that the Criminal Evidence Act was in breach of his Art 6
rights (right to a fair trial).
 HL agreed.
 Decision unquestionably opposite to parliament intentions
Impact
o Lord Steyn decision
o HL decided that it has wide discretion to construe statues, and the clear
presumption was that s3 should be used rather than, declaring a statute
incompatible if poss.
Ghaidan v Godin Mendoza [2004] UKHL 30
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Facts
o Respondent had been in a stable homosexual relationship with the deceased
tenant
o but the Rent Act 1977 only gave right to succession to a spouse, meaning a
person living with the original tenant ‘as his or her wife or husband’.
o The respondent alleged this violated his rights under Art 14 of the ECHR
Legal issue
o could the Rent Act be read in a way to give effect to convention rights?
o HL held it could
o agreed with the respondent, even though this contradicted the plain and
unambiguous meaning of ‘spouse’.
Impact
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Arguably strained the language to its limits- but did this because the purpose
of the act
 The law clearly did not apply to spouse
 BUT they argued that the purpose of the act was to protect enduring,
stable relationships
Lord Millet dissented.
 See for argument that court analysis went too far
When it is not possible to apply
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Courts will go to significant lengths to try and interpret leg. in a compatible manner
o Will do it when they can
Three limiting factors (to the extent that courts are willing to stretch language)
o Fundamental features of the legislative scheme
o The constitutional limits fo the court’s policymaking role
o The practical consequences of according the provision a conventioncompliant interpretation
WILL NOT
o Reach an interpretation that is against the intentions of parliament
 i.e. they may limit what Parliament wanted to do, but the essence of
the intention remains the same
 I.e. Ghaidan HL didn’t prevent it applying to spouses, just extended
the interpretation of spouses
o Will not rewrite legislation
 Ie if to make it compatible need to strike a section – will not do this
Instead, will make a – declaration of incompatibility
o Section 4 of the HR
R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice
(Respondent) [2014] UKSC 38
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The suicide act
‘The appellants, Mrs Nicklinson and Mr Lamb, contend that section 2(1) of the
Suicide Act 1961 Act, at least if read in accordance with conventional principles,
constitutes a disproportionate, and therefore an unjustifiable, interference with the
article 8 rights….’
SC refused to make a declaration of incompatibility in this case. Held, it
was a matter for parliament.
R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for
International Development (in substitution for the Home Secretary and the Education
Secretary) (Respondent) [2018] UKSC 32
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Civil partnerships for hetero couples
The SC did make a declaration of incompatibility in that case.
Declarations of incompatibility
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Section 4
Only certain courts
o High court
o Court of appeal
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o The supreme court
Can only exercise power IF
o The court ‘is satisfied that the provision is incompatible with a convention
right’
o Section 3 and 4 are mutually exclusive
  if it is not possible to interpret they MUST not do so
Discretionary power in the event of failure of s 3
o Are not required to do so
o THO highly unusual for a court to decline to exercise is s4 power
Effects
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Law remains valid and in force
o AND court must continue to enforce it
Political implications
Parliament is not required to do anything
o Could just ignore and continue operating
section 10
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Trigger the discretionary power of the exec gov to issue remedial orders
o S 10 HRA
Allow gov to enact secondary legislation amending the act of parliament found
incompatible
Aka Henry VIII power
Remedial orders Rarely used in practice
o Generally instead amended, replace or repealed via enactment of fresh
primary legislation
Analysis
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Convention rights operate as real constraints upon the UK parliament
o Even tho they do not technically constitute legal constraints in terms of dom.
Law.
Creates a political environment that makes it difficult for parliament to remove or
curtail rights
It is not a legally entrenched bill of rights- can be repealed
Declining of support for HRA/ calls for appeal = damaging