Protection of the Individual’s Human Rights and Freedoms in the UK (OCR A-Level Law): Revision Notes
The Impact of the Human Rights Act 1998
Introduction
The Human Rights Act 1998 (HRA 1998) was enacted by the UK Parliament in 1998 and came into force in 2000. This legislation marked a significant constitutional development as it was the first statute specifically designed to protect basic human rights within the UK's domestic legal framework.
The Act brought about a fundamental shift in how human rights are protected in the UK by incorporating key provisions of the European Convention on Human Rights (ECHR) into domestic law. This means that individuals can now rely on Convention rights in UK courts without needing to take their case to the European Court of Human Rights in Strasbourg.
Before the HRA 1998, UK citizens who wanted to enforce their ECHR rights had to take cases all the way to Strasbourg, a lengthy and expensive process. The Act made these rights directly enforceable in UK courts, providing faster and more accessible justice.
Purpose of the Act
The primary aim of the HRA 1998 is stated at the beginning of the statute:
to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights
The Act achieves this by incorporating several key provisions from the ECHR into UK law. Specifically, it includes Articles 2 to 12 and Article 14 of the main Convention, as well as Articles 1 to 3 of the First Protocol.
Important distinction: The section numbers of the HRA 1998 do not correspond with the Article numbers of the ECHR. These are separate numbering systems within different legal documents, so care must be taken not to confuse them.
For example:
- Section 3 of the HRA 1998 deals with interpretation of legislation
- Article 3 of the ECHR prohibits torture and inhuman treatment
These are completely different provisions in different legal documents.
Key provisions of the HRA 1998
Section 6: Unlawful acts by public authorities
Section 6 establishes a fundamental principle:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right
This provision means that any public authority must ensure its actions comply with the Convention rights incorporated by the Act. If a public authority acts incompatibly with these rights, its actions are unlawful.
Public authority is defined broadly under the Act. It encompasses organisations and individuals working in the public sector. However, there are important exceptions: government ministers and those connected to Parliament are not classified as public authorities when they are carrying out functions related to Parliamentary business. This exception preserves Parliamentary sovereignty to some extent.
Who counts as a public authority?
Public authorities include:
- Government departments and agencies
- Local councils
- NHS trusts and health authorities
- Police forces
- Courts and tribunals
- State-funded schools
This broad definition ensures comprehensive human rights protection across the public sector.
Section 7: Proceedings against public authorities
Section 7 provides individuals with a legal remedy:
A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 may (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
This section empowers individuals to take direct action if they believe a public authority has violated their Convention rights. They can either bring a separate legal claim under the HRA 1998 or raise the Convention right as part of existing legal proceedings. This dual approach provides flexibility in how human rights issues can be addressed in the courts.
Section 2: Duty to take account of ECtHR jurisprudence
Section 2 requires UK courts to consider European case law:
A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights
This provision ensures that UK courts do not operate in isolation when interpreting Convention rights. Judges must consider how the European Court of Human Rights has previously interpreted these rights, even if this conflicts with existing UK case law. The phrase "take into account" is significant—UK courts are not bound to follow ECtHR decisions but must give them serious consideration.
An important historical note: English courts had already begun giving precedence to the Convention even before the HRA 1998 was passed, as demonstrated in R v DPP ex parte Kebilene (1999). This case showed the judiciary's willingness to embrace human rights principles even before they were formally incorporated into domestic law.
Section 19: Statement of compatibility
Section 19 introduces a requirement for government ministers introducing new legislation:
A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill, make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights
This requirement is known as a statement of compatibility. Before a Bill proceeds to its Second Reading in Parliament, the responsible minister must declare whether they believe the Bill complies with Convention rights.
However, Section 19 contains an important qualification: a minister can make a declaration of incompatibility and still proceed with the Bill. This preserves Parliamentary sovereignty by allowing Parliament to pass legislation even if it conflicts with Convention rights, though the political consequences of doing so may be significant.
Parliamentary Sovereignty Preserved
Even if a minister declares a Bill incompatible with Convention rights, Parliament can still pass it into law. This maintains the constitutional principle that Parliament is supreme and cannot be overruled by the courts. However, the political pressure and scrutiny that comes with such a declaration makes this option rarely used in practice.
Section 3: Interpretation of legislation
Section 3 establishes a crucial interpretive principle:
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
This section requires judges to interpret all UK legislation in a manner that harmonises with Convention rights wherever possible. This applies to both primary legislation (Acts of Parliament) and subordinate legislation (delegated legislation such as statutory instruments).
The qualifying phrase "so far as it is possible to do so" is significant. It recognises that there may be circumstances where legislation cannot be interpreted compatibly with Convention rights without distorting its clear meaning. In such cases, the courts have other options available under Section 4.
Section 4: Declarations of incompatibility
Section 4 provides courts with a remedy when legislation cannot be interpreted compatibly:
If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility
When a court determines that a provision in an Act of Parliament is incompatible with Convention rights and cannot be interpreted compatibly under Section 3, it can issue a declaration of incompatibility. This is a formal statement that the legislation conflicts with Convention rights.
Critical Points about Declarations of Incompatibility:
- A declaration of incompatibility does not affect the validity of the legislation—it remains in force
- The declaration also does not affect the outcome of the case in which it is made
- However, it serves as a powerful signal to Parliament that the law needs to be changed
- This preserves Parliamentary sovereignty while creating political pressure for reform
Section 10: Remedial action
Section 10 provides a mechanism for addressing incompatibilities:
If an Act is found to be incompatible under Section 4, a statutory instrument can be used to amend the offending legislation to bring it into compliance with Convention rights. This provides a faster route for amendment than passing new primary legislation.
However, Section 10(2) contains an important qualification:
The relevant government minister may by order make such amendments to the legislation as he considers necessary to remove the incompatibility
The use of "may" rather than "must" is crucial. The government is not legally obliged to amend incompatible legislation following a declaration of incompatibility. This preserves Parliamentary sovereignty by leaving the final decision about whether to change the law with the elected government, not with the courts.
Key cases illustrating the impact of the HRA 1998
R v DPP ex parte Kebilene (1999)
Worked Example: Pre-HRA Human Rights Protection
Facts: Three defendants faced terrorist-related charges under Section 16A of the Terrorism Act 1989. The trial judge held that this provision was contrary to Article 6 ECHR (the right to a fair trial).
Outcome: The House of Lords agreed with the trial judge's assessment that the provision was incompatible with Convention rights.
Significance: This case is notable because it occurred before the HRA 1998 came into force, yet the courts still gave precedence to Convention rights. It demonstrated the direction UK jurisprudence was moving even before formal incorporation of the ECHR.
Key Learning Point: The case shows judicial willingness to embrace human rights principles and signals that the HRA 1998 built upon existing judicial trends rather than creating an entirely new approach.
Re: Medicaments (No. 2), Director General of Fair Trading v Proprietary Association of Great Britain (2001)
Worked Example: Section 2 in Action - Overriding Precedent
Facts: The case involved an alleged breach of Article 6 ECHR concerning the test for bias in UK court proceedings. The domestic law on bias had been established by the House of Lords in R v Gough (1993), but this approach was incompatible with several cases decided by the ECtHR.
Outcome: The Court of Appeal refused to follow the House of Lords' decision in Gough, instead applying the ECHR-compliant approach.
Significance: This case demonstrates the impact of Section 2 HRA 1998. Even though Gough was a binding House of Lords precedent, the Court of Appeal prioritised the ECtHR's interpretation of Article 6. This shows how the HRA 1998 can effectively override the normal rules of precedent when Convention rights are engaged.
Key Learning Point: Section 2's requirement to "take into account" ECtHR jurisprudence can be powerful enough to override traditional precedent rules, fundamentally changing how UK courts approach conflicting case law.
R v A (2001)
Worked Example: Section 3 Interpretation in Practice
Facts: The defendant was charged with rape and sought to introduce evidence about the complainant's sexual history. An Act of Parliament excluded such evidence. The defendant argued that Section 3 HRA 1998 required the legislation to be interpreted in light of Article 6 ECHR (the right to a fair trial).
Outcome: The House of Lords held that Acts of Parliament should be interpreted where necessary under Section 3, but in this case, the matter was for the trial judge to determine. The court ruled that a person's sexual history could potentially be admitted but only if doing so would not prejudice the fairness of the trial. The court found that Article 6 was not violated.
Significance: This case illustrates how Section 3 operates in practice. The courts will attempt to interpret legislation compatibly with Convention rights, but this must be done sensitively, taking into account other important considerations such as protecting vulnerable witnesses and ensuring fair trials.
Key Learning Point: Section 3 requires a balancing act—courts must harmonise legislation with Convention rights while respecting the underlying policy objectives of the legislation and protecting all parties' interests.
H v Mental Health Review Tribunal (2001)
Worked Example: Section 4 Declaration of Incompatibility
Facts: H challenged Section 72 of the Mental Health Act 1983, arguing that it placed an unreasonable burden on him. Under the Act, he had to prove he was not suffering from a mental disorder before a mental health tribunal could order his release.
Outcome: The Court of Appeal held that certain subsections of Section 72(1) of the Mental Health Act 1983 were incompatible with Articles 5(1) and 5(4) ECHR (the right to liberty and the right to a speedy determination of detention). However, the court emphasised that only Parliament could amend the law.
Significance: This case demonstrates the operation of Section 4. When legislation cannot be interpreted compatibly with Convention rights under Section 3, courts can issue a declaration of incompatibility. The court made clear that despite finding incompatibility, it could not itself change the law—that power remained with Parliament.
Key Learning Point: Section 4 declarations show the balance struck by the HRA 1998: courts can identify human rights violations but must respect Parliamentary sovereignty by leaving the ultimate decision about legislative change to Parliament.
The HRA 1998 and devolution
The Human Rights Act 1998 has become deeply embedded within the UK's constitutional framework, particularly in relation to the devolved nations. There is a strong argument that the Act is so entrenched in the constitutional arrangements for Wales, Scotland, and Northern Ireland that these nations could potentially block any attempt by the UK Government to repeal the Act.
This entrenchment occurs because the devolution settlements for these nations reference and rely upon the HRA 1998. Any attempt to replace the HRA 1998 with a UK Bill of Rights would therefore have significant constitutional implications for the devolved administrations. The devolved legislatures might argue that they have a legitimate interest in preventing repeal, as human rights protection forms part of their constitutional foundations.
Constitutional Complexity
The interweaving of the HRA 1998 with devolution settlements means:
- The Scotland Act 1998, Government of Wales Act 1998, and Northern Ireland Act 1998 all reference the HRA
- Devolved legislatures cannot pass laws incompatible with Convention rights
- Any repeal of the HRA 1998 would require fundamental restructuring of devolution arrangements
- This creates a practical barrier to repeal, even though Parliament theoretically has the power to do so
Exam guidance
When answering questions about the impact of the HRA 1998:
For "explain" questions:
- Clearly define key terms such as public authority, declaration of incompatibility, and statement of compatibility
- Explain the purpose of specific sections (particularly sections 2, 3, 4, 6, 7, 10, and 19)
- Use case law to illustrate how the Act operates in practice
For "analyse" questions:
- Consider how the Act balances human rights protection with Parliamentary sovereignty
- Examine the limitations of the Act (e.g., the permissive nature of Section 10, the ability of ministers to proceed with incompatible legislation)
- Discuss the relationship between UK courts and the ECtHR under Section 2
For "evaluate" questions:
- Assess the effectiveness of the Act in protecting human rights
- Consider criticisms of the Act (e.g., that it does not go far enough, or that it interferes too much with Parliamentary sovereignty)
- Discuss whether the Act has achieved its stated purpose
- Consider alternative approaches, such as a codified constitution or a UK Bill of Rights
Understanding Command Words
- Explain: Give reasons why something happens or why something is the way it is
- Analyse: Break down and examine the different elements, showing how they relate to each other
- Evaluate: Assess the strengths and weaknesses, making a supported judgment about effectiveness or success
- Discuss: Present different viewpoints and reach a conclusion based on evidence
Summary
Key Points to Remember:
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The Human Rights Act 1998 was the UK's first statute specifically designed to protect human rights, coming into force in 2000
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The Act incorporates key provisions of the European Convention on Human Rights (Articles 2-12, 14, and First Protocol Articles 1-3) into UK domestic law
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Section 6 makes it unlawful for public authorities to act incompatibly with Convention rights
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Section 3 requires courts to interpret legislation compatibly with Convention rights "so far as it is possible to do so"
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Section 4 allows courts to make declarations of incompatibility when legislation cannot be interpreted compatibly, but this does not invalidate the legislation
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The government is not obliged to amend incompatible legislation following a declaration of incompatibility (Section 10), preserving Parliamentary sovereignty
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UK courts must "take into account" ECtHR decisions (Section 2) but are not strictly bound by them
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Key cases:
- R v DPP ex parte Kebilene - showing judicial support for Convention rights even before the Act came into force
- Re: Medicaments (No. 2) - demonstrating how Section 2 can override precedent
- R v A - illustrating Section 3 interpretation
- H v Mental Health Review Tribunal - showing declarations of incompatibility under Section 4
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The Act is deeply connected to the devolution settlements, potentially making it difficult to repeal without the agreement of the devolved nations