Learning Outcomes
This article provides a comprehensive explanation of the structure and effect of the Human Rights Act 1998 (HRA), exploring how UK courts must interpret domestic legislation consistently with the European Convention on Human Rights (ECHR), the circumstances in which declarations of incompatibility may be made, the scope of duties imposed on public authorities, and the available legal remedies for breaches of Convention rights. It analyses the practical operation of key sections—sections 2, 3, 4, 6, 7, 8, and 10—alongside essential principles of statutory interpretation, the hierarchy of judicial precedent, and constitutional features such as the rule of law and separation of powers. It also provides clarity on the relationship between UK law and Strasbourg jurisprudence, the mechanisms for legislative reform after declarations of incompatibility, and the rights and procedures for individuals bringing human rights claims in the UK. Throughout, these principles are applied to realistic SQE1-style scenarios, strengthening understanding of the practical and constitutional framework governing human rights protection in the UK.
SQE1 Syllabus
For SQE1, you are required to understand the Human Rights Act 1998 and its interaction with the European Convention on Human Rights, including the operation of sections 2, 3, 4, 6, 7, 8, and 10, with a focus on the following syllabus points:
- 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 legal 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 process for amending incompatible legislation (Section 10 HRA)
- practical application of statutory interpretation principles in the context of human rights
- structure of the court system and the appellate routes for human rights and judicial review claims
- interaction of common law, statutory law, and public law remedies for breaches of human rights
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) gives legal effect in UK law to the majority of the rights contained in the European Convention on Human Rights (ECHR). This means that most Convention rights can be enforced directly in UK courts, rather than requiring a claimant to go to the European Court of Human Rights in Strasbourg. The HRA establishes duties for courts and public authorities, defines who has standing to bring proceedings, and sets out how and when UK laws or practices may be found incompatible with Convention rights.
Sections 2, 3, 4, 6, 7, 8, and 10 are central to this human rights framework. They collectively determine how courts engage with ECHR case law, how primary and subordinate legislation must be interpreted, the process and impact of declarations of incompatibility, obligations placed on public authorities, rights of victims, just satisfaction remedies, and the mechanisms for urgent amendment of incompatible UK legislation. Their interaction defines the constitutional balance between parliamentary sovereignty, judicial protection, and the rule of law.
Key Term: Parliamentary sovereignty
The principle that Parliament can make and unmake any law, and no court or body has the power to override or set aside its legislation.Key Term: Separation of powers
The doctrine dividing the functions of the state into three branches—the executive, legislature, and judiciary—to prevent abuses of power and safeguard liberty.Key Term: Rule of law
The principle that all individuals and authorities within the state are bound by, and entitled to the benefit of, publicly promulgated law administered in the courts.
The Role of Strasbourg Case Law: Section 2 HRA
Section 2 HRA requires that, when dealing with a question that has arisen about a Convention right, any UK court or tribunal “must take into account” judgments, decisions, declarations, and advisory opinions of the European Court of Human Rights (ECtHR), as well as previous opinions and decisions of the now-abolished European Commission of Human Rights and relevant decisions of the Committee of Ministers.
UK courts are not required to follow ECtHR decisions as binding precedent. However, according to the leading judgment in R (Ullah) v Special Adjudicator, domestic courts should normally follow clear and constant Strasbourg jurisprudence “in the absence of some special circumstances.” Divergence is only justified where there is no clear ECtHR authority, conflicting Strasbourg case law, or compelling national reasons for departing from Strasbourg’s approach. UK courts may choose to follow domestic precedent if it is more appropriate to the national context, but should do so with caution so as not to diminish protection of rights.
Key Term: Strasbourg jurisprudence
The body of decisions and reasoning of the European Court of Human Rights, which UK courts must take into account when deciding HRA cases.
The ongoing “dialogue” between UK courts and Strasbourg is reflected in instances where UK judgments have prompted the ECtHR to reconsider its position (e.g., R v Horncastle on hearsay evidence). There remains a constitutional commitment to uphold Convention rights domestically, mitigated by the understanding that the ECtHR is the ultimate interpreter of the ECHR for the purposes of international law, while UK law retains independence in domestic legal effect.
Interpreting Legislation: Section 3 HRA
Section 3 HRA imposes on UK courts a strong interpretative duty: “So far as it is possible to do so,” both primary and subordinate legislation “must be read and given effect in a way which is compatible with the Convention rights.” This obligation applies regardless of whether the legislation was enacted before or after the HRA.
The courts have developed a sophisticated approach to section 3 interpretation. If legislation can be interpreted compatibly with a Convention right—even if linguistically strained—the courts should adopt that reading, unless it would contradict the express wording or a fundamental feature of the statute, amend the policy, or amount to judicial legislation rather than interpretation. The leading case is Ghaidan v Godin-Mendoza, where the House of Lords “read in” words to include same-sex partners within the scope of the Rent Act succession rights—reasoning that to do otherwise would violate Article 8 (private and family life) and Article 14 (discrimination). However, the courts have emphasised that section 3 does not permit them to change or override the express will of Parliament; when interpretation cannot achieve compatibility, recourse must be made to section 4.
Key Term: Section 3 interpretation
The requirement that courts interpret both primary and subordinate legislation to be compatible with Convention rights "so far as it is possible to do so", stopping short of fundamentally rewriting statutory provisions.
Section 3 is often referred to as a "strong tool", but not an infinitely elastic one. It does not set aside primary legislation, nor does it permit the courts to depart from the core intention of Parliament. Secondary legislation (subordinate legislation) may be held invalid if it is incompatible with Convention rights and cannot be interpreted otherwise, provided its parent Act does not prevent its removal.
Worked Example 1.1
A statute says only "spouses" may inherit a statutory tenancy. A same-sex partner, denied succession, challenges this exclusion under the HRA. How should the court approach the statutory wording?
Answer:
The court must use section 3 HRA to interpret the word "spouse" so far as possible consistently with Convention rights, especially Article 8 (private and family life) and Article 14 (prohibition of discrimination). If it is possible to interpret "spouse" to include same-sex partners, the court must do so, even if this requires reading words into the statute or adopting a broader meaning than the literal wording suggests.
Section 3 also interacts with common law presumptions of statutory interpretation—including the principle of legality, which presumes that fundamental rights are not overridden by ambiguous or general wording, and the presumption against retrospectivity or interference with individual liberty without clear authority.
Declarations of Incompatibility: Section 4 HRA
Section 4 HRA recognises the supremacy of Parliament by providing that, where it is not possible to achieve a Convention-compliant interpretation under section 3, certain superior courts may make a “declaration of incompatibility.” The courts permitted to make such declarations are the High Court, Court of Appeal, Supreme Court, and other higher courts expressly named in the statute.
A declaration of incompatibility is a formal statement that the court finds a provision of primary legislation (or of subordinate legislation if primary legislation prevents its removal) to be incompatible with a Convention right. Notably, the declaration does not invalidate or affect the operation or enforcement of the legislation—Parliament may, but is not required to, amend or repeal the offending provision.
Declarations of incompatibility are exceptional remedies, used only as a “last resort” where all possible avenues for Convention-compatible interpretation have been exhausted. While the remedy is not binding on the parties or Parliament, it sends a powerful constitutional signal and typically results in government action to amend the law (see section 10 below). Failure to act may lead applicants to seek redress from the ECtHR.
Key Term: Declaration of incompatibility
A statement by a higher court under section 4 HRA that a legislative provision cannot be interpreted consistently with a Convention right. The law remains in force unless and until Parliament amends it.
Worked Example 1.2
A statute requires the Home Secretary, not a judge, to set the minimum prison term for life prisoners. This is challenged as a breach of Article 6 (right to a fair trial). The court finds an inconsistent statutory provision that cannot be interpreted compatibly. What can the court do?
Answer:
The court may make a declaration of incompatibility under section 4, signalling to Parliament that the provision is inconsistent with Convention rights. The statute remains in force until Parliament or the relevant minister acts to change it, but affected individuals may also pursue a claim at Strasbourg if no remedy is forthcoming.
Declarations of incompatibility preserve parliamentary sovereignty and the principle that only Parliament can make, amend, or repeal primary legislation in the UK.
Duties of Public Authorities: Section 6 HRA
Section 6 HRA makes it unlawful for a “public authority” to act in a way that is incompatible with a Convention right—unless required to do so by primary legislation that cannot be interpreted compatibly. This applies to:
- government departments and all branches of the executive
- local authorities and other statutory bodies
- the police, armed forces, and courts or tribunals (when not making primary legislation or acting in a legislative capacity)
- persons or organisations “certain of whose functions are functions of a public nature,” unless acting in a purely private capacity (“hybrid authorities”)
The effect of section 6 is to put Convention rights at the centre of public administration and judicial decision-making. When courts develop the common law, they must act in a way compatible with Convention rights.
Key Term: Public authority
Any body or person performing functions of a public nature, including government and judicial bodies, subject to the exclusion of Parliament when legislating.
Section 6 does not apply if, as a result of primary legislation, the authority could not have acted differently or is enforcing a legislative provision that is itself incompatible with Convention rights. In these situations, the public authority will not be liable under the HRA, upholding the integrity of parliamentary sovereignty.
Exam Warning:
Public authorities faced with a clear, conflicting statutory duty are not required to act contrary to primary legislation—even where this results in a breach of a Convention right. The affected individuals may then seek a declaration of incompatibility.
This provision has been significant in judicial review challenges, where claimants allege that public authorities such as local councils, the police, or government departments have acted incompatibly with Convention rights. Courts acting as public authorities must themselves ensure that their decisions and procedures are Convention compliant, except when constrained by unambiguous primary legislation.
Who Can Bring Proceedings: Section 7 HRA
Section 7 HRA provides that a person who is (or would be) a “victim” of an unlawful act by a public authority may bring proceedings against that authority in a UK court or tribunal, or may rely on a Convention right in “any legal proceedings.” This is the exclusive route for individuals seeking to allege direct breaches of their rights by public authorities under the HRA framework.
The definition of “victim” aligns with Article 34 ECHR: a victim is a person “directly affected” by the alleged breach, which may include natural and legal persons but not pressure groups or those without a personal stake. Family members may claim under the HRA if they are themselves directly affected (e.g., in cases involving the right to life).
Key Term: Victim
A person directly affected by an alleged breach of a Convention right, as defined by Article 34 ECHR, entitled to bring proceedings (or rely on a Convention right) in accordance with section 7 HRA.
Proceedings must generally be commenced within one year of the unlawful act, subject to the court’s discretion to allow a longer period “if it considers it equitable to do so.” Standing is thereby more restrictive than in judicial review of administrative action, and only actual victims of right violations can apply. Interest groups cannot bring a claim unless they represent the direct interests of a victim.
Section 7 applies both to new claims and to relying on Convention rights as a defence or ancillary point in pre-existing litigation.
Remedies for Breach: Section 8 HRA
Section 8 HRA permits UK courts and tribunals hearing proceedings brought by a victim under section 7 to grant such relief or remedy, or make such order, “within their powers as they consider just and appropriate.” This includes, but is not limited to, damages. The overriding principle is one of “just satisfaction,” echoing the remedial structure of the ECHR itself under Article 41.
Damages are only available where the court is satisfied this is necessary to afford “just satisfaction” to the victim, and courts must take into account the principles applied by the ECtHR—meaning damages are typically modest compared to domestic tort awards, and may be purely symbolic or aimed at remedying loss of opportunity or emotional distress rather than substantial financial loss.
Other possible remedies include declarations, injunctions, mandatory orders, or quashing unlawful decisions. The court may also order specific performance of a public authority’s obligation, or require an authority to reconsider a decision or modify its practice.
Key Term: Just satisfaction
A remedy for breach of a Convention right that is fair and appropriate in the circumstances, following the equitable and proportionate approach of the ECtHR and UK courts.
Section 8 does not create new causes of action, but allows courts to grant appropriate remedies for breaches of Convention rights that have occurred.
Worked Example 1.3
A local authority evicts a tenant in a manner that is arbitrary and contrary to both its own procedures and Article 8 ECHR (right to respect for private and family life). The tenant brings a claim under the HRA. What can the court do?
Answer:
The court may grant relief under section 8 HRA, such as a declaration that the eviction was unlawful, an injunction requiring the authority to reinstate the tenant if possible, or (where appropriate) an award of damages to reflect the loss or distress suffered, always in accordance with the requirements of “just satisfaction”.
Section 8 remedies must not exceed the ordinary powers of the court or tribunal hearing the claim—for instance, a tribunal without power to award damages in its normal proceedings cannot award damages under section 8 HRA.
Remedial Orders: Section 10 HRA
Section 10 HRA permits a “Minister of the Crown” to make a “remedial order”—a form of secondary legislation—to rapidly amend, repeal, or replace statutory provisions that have been declared incompatible with Convention rights by a UK court or the ECtHR, where “there are compelling reasons” to do so, or where urgent remedial action is justified.
Remedial orders are subject to an “affirmative” parliamentary procedure: the draft order must be laid before Parliament and approved by both Houses, unless made on an urgent basis, in which case it takes effect immediately but lapses unless approved within 120 days. The section 10 process thus provides a constitutional safety valve, permitting reforms of incompatible legislation without requiring full primary legislative process, while maintaining legislative oversight.
Key Term: Remedial order
A statutory instrument made by a minister to amend legislation identified by a declaration of incompatibility or an adverse ECtHR judgment, as a speedy remedial measure subject to specified parliamentary approval procedures.
Remedial orders cannot be used to amend or repeal common law rules or to make major constitutional changes beyond correcting the specific incompatibility identified.
Revision Tip:
Although there is often significant political pressure to amend legislation following a declaration of incompatibility, Parliament is not legally obligated to do so. The remedial order process is designed for technical and urgent reforms; major policy changes are generally left to the full legislative process.
Summary
The Human Rights Act 1998 is a central constitutional statute in the UK, embedding the ECHR into national law while preserving parliamentary sovereignty. It requires UK courts to take Strasbourg case law into account but not to treat it as binding, compels courts to interpret legislation compatibly with Convention rights where possible, and creates a mechanism for the higher courts to issue declarations of incompatibility where incompatibility cannot be avoided. Public authorities, including courts, must not act incompatibly with Convention rights, unless compelled by primary legislation. Only victims—those directly affected—have standing to bring proceedings under the Act. Courts and tribunals have wide discretion to provide just satisfaction remedies, with damages only awarded where necessary. The ministerial power to make remedial orders allows for urgent correction of declaratory incompatibilities, but ultimate control remains with Parliament.
These mechanisms collectively ensure that the UK’s protection of human rights aligns with international standards, while balancing the autonomy of the democratic legislature and the oversight of the judiciary. The HRA has thus reconfigured the relationship between the state, the courts, and the individual, providing a robust framework for the constitutional enforcement of fundamental rights in domestic 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 this is not binding precedent.
- Section 3 HRA obliges courts to interpret legislation compatibly with Convention rights wherever possible, unless to do so would rewrite or contradict the fundamental features of the Act.
- Section 4 HRA allows higher courts to declare legislation incompatible with Convention rights, without invalidating primary legislation or requiring amendment; Parliament retains sovereignty.
- Section 6 HRA makes it unlawful for public authorities to act incompatibly with Convention rights unless compelled by primary legislation.
- Section 7 HRA restricts standing to “victims” as defined by Article 34 ECHR, requiring direct effect by the alleged breach.
- Section 8 HRA permits courts to grant any just and appropriate remedy, including damages, to victims of unlawful acts by public authorities; these remedies are guided by the principle of just satisfaction.
- Section 10 HRA enables ministers to issue remedial orders to swiftly amend or remove breaches identified in declarations of incompatibility or adverse ECtHR judgments, while retaining parliamentary scrutiny.
- The HRA preserves parliamentary sovereignty and the primacy of the democratic legislature while requiring the judiciary to provide robust protection for fundamental rights.
Key Terms and Concepts
- Parliamentary sovereignty
- Separation of powers
- Rule of law
- Strasbourg jurisprudence
- Section 3 interpretation
- Declaration of incompatibility
- Public authority
- Victim
- Just satisfaction
- Remedial order