Human Rights Act 1998 and the ECHR: Key Principles and Cases

Introduction

The Human Rights Act 1998 (HRA) brings the European Convention on Human Rights (ECHR) into UK law. It allows people to rely on Convention rights in UK courts and requires public authorities to act in line with those rights, unless primary legislation leaves them no choice. Courts must, where possible, read legislation so it fits with the Convention; where that cannot be done, higher courts can make a declaration that the legislation is incompatible. The HRA has shaped public law, criminal justice, immigration, policing, and privacy.

This guide explains the key sections, shows how the courts approach them, and summarises leading cases you should know.

What You’ll Learn

• Which ECHR rights are given effect by the HRA and who can claim them
• How section 2 guides UK courts when considering Strasbourg case law
• How section 3’s reading rule works and where its limits lie
• When courts issue a section 4 declaration of incompatibility and what follows
• Who counts as a public authority under section 6 (including hybrid bodies)
• The proportionality test used by UK courts in HRA claims
• Standing, time limits, and remedies under sections 7–9
• Practical steps for bringing or defending HRA-based claims

Core Concepts

Convention rights in UK law (s.1 and Schedule 1)

• The HRA gives effect to most rights in the ECHR and certain Protocols (e.g., Articles 2–14, Protocol 1 Article 1 on property, Article 2 on education).
• These rights are enforceable in UK courts against public authorities.
• UK courts can grant remedies for breaches (s.8), and proceedings must generally be started within one year (s.7).

Tip: Start by identifying the precise Article engaged, then ask whether there is an interference, justification, and proportionality.

Using Strasbourg case law (s.2)

• Courts must “take into account” relevant judgments of the European Court of Human Rights (ECtHR). This is not a strict duty to follow them.
• The UK approach (often called the “mirror” or “no more, no less” stance) is seen in cases such as R (Ullah) v Special Adjudicator and Manchester City Council v Pinnock.
• UK courts may decline to follow Strasbourg if the Strasbourg line is unclear, outdated, or conflicts with domestic principles, but they explain their reasons carefully.

Practical note: Cite the closest Strasbourg authority and show how it applies to the facts; then show why a domestic approach should align with (or depart from) it.

Reading legislation compatibly (s.3)

• Section 3 requires all legislation, past and future, to be read and given effect, “so far as it is possible to do so,” in a way that is compatible with Convention rights.
• This can involve reading in, reading down, or reading words out, as long as the court does not change a fundamental feature of the statute.
• Key case: Ghaidan v Godin-Mendoza [2004] — the House of Lords adopted a strong reading to prevent discrimination in succession rights for same-sex partners.

Limits:

• Section 3 is not a licence to rewrite the scheme of an Act.
• If compatibility cannot sensibly be achieved, the court should consider a declaration under section 4.

Declarations and Parliament’s role (s.4 and s.10)

• If compatibility cannot be achieved under section 3, higher courts can issue a declaration of incompatibility (s.4). This does not strike down the statute.
• Parliament remains sovereign. A declaration signals a rights problem and invites a legislative fix.
• Government can correct incompatibilities by primary legislation or by using a remedial order under section 10 (a fast-track procedure with Parliamentary scrutiny).

Examples:

• Bellinger v Bellinger [2003]: declaration issued; Parliament later passed the Gender Recognition Act 2004.
• R (F) v Secretary of State for Justice [2010]: declaration about indefinite sex offender notification led to legislative change.

Public authorities and duties (s.6)

• It is unlawful for a public authority to act in a way that is incompatible with a Convention right, unless obliged by primary legislation (s.6).
• “Public authority” includes core public bodies (government departments, local authorities, police) and private bodies when performing public functions (hybrid authorities).
• The courts are public authorities. This means courts must develop the common law and apply statutes in a way that is compatible with Convention rights, which allows rights to influence private disputes indirectly (e.g., privacy vs free speech).

Key cases:

• Aston Cantlow v Wallbank [2003]: guidance on “core” vs “hybrid” public authorities.
• YL v Birmingham City Council [2007]: a private care home was not a public authority on the facts (later addressed by legislation for certain care arrangements).

Standing, time limits, and remedies (ss.7–9)

• Standing (s.7): the claimant must be a “victim” (broadly the same as under Article 34 ECHR). No general public-interest actions.
• Time limit (s.7): proceedings must be brought within one year of the act complained of, unless the court considers it equitable to allow more time.
• Remedies (s.8): courts can grant just and appropriate relief, including damages where necessary to afford “just satisfaction” (reflecting Strasbourg practice). Damages are not automatic and are assessed carefully.
• Judicial acts (s.9): special rules apply to claims about judicial acts; appeals are usually the correct route unless the act was not subject to appeal.

Proportionality:

• For qualified rights (e.g., Articles 8–11), courts ask whether the interference is lawful, pursues a legitimate aim, and is necessary in a democratic society. The proportionality test from R (Daly) v Secretary of State for the Home Department and subsequent cases is central.

Key Examples or Case Studies

A and others v Secretary of State for the Home Department [2004] UKHL 56 (the “Belmarsh” case)

• Context: Indefinite detention without trial of foreign terrorism suspects under the Anti‑terrorism, Crime and Security Act 2001.
• Key point: Breached Article 5 (liberty) and was discriminatory (Article 14) because it applied only to foreign nationals.
• Use: Demonstrates section 4 declarations and how HRA review can drive policy change.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26

• Context: Prison policy allowing searches of legally privileged correspondence outside a prisoner’s presence.
• Key point: Introduced a structured proportionality approach; the policy went further than necessary and breached Article 8.
• Use: Sets the modern test for assessing whether interferences with qualified rights are justified.

Campbell v MGN Ltd [2004] UKHL 22

• Context: Publication of sensitive medical and location details about a public figure attending Narcotics Anonymous.
• Key point: Balanced Article 8 (privacy) and Article 10 (expression); established misuse of private information in its modern form.
• Use: Shows the HRA’s indirect effect in private disputes because courts (as public authorities) must apply the law compatibly with Convention rights.

Ghaidan v Godin-Mendoza [2004] UKHL 30

• Context: Whether a same-sex partner could succeed to a statutory tenancy as a “spouse” or “person living as husband and wife.”
• Key point: Section 3 allowed a conforming interpretation to prevent discrimination contrary to Article 14 read with Article 8.
• Use: Illustrates the strength of section 3 and its limits: strong but not a wholesale rewrite.

Bellinger v Bellinger [2003] UKHL 21

• Context: Marriage validity where domestic law did not recognise gender reassignment.
• Key point: Section 3 could not fix the broader statutory scheme; a section 4 declaration was issued.
• Use: When section 3 cannot sensibly achieve compatibility, a declaration is the correct route, leaving Parliament to legislate.

R (Ullah) v Special Adjudicator [2004] UKHL 26

• Context: Expulsion raising Article 9 (religion) concerns.
• Key point: UK courts should generally keep pace with Strasbourg jurisprudence, but not run ahead without strong reasons.
• Use: Explains how section 2 frames the court’s approach to Strasbourg case law.

Practical Applications

Step-by-step approach to an HRA claim:

1. Identify the right: Which Convention Article (and any relevant Protocol) is engaged?
2. Public authority: Is the defendant a public authority or acting with a public function (s.6)? If a private dispute, can the court’s development of the common law address the issue?
3. Interference and scope: Has there been an interference or failure to protect the right (positive obligation)? Is the claim within the right’s scope?
4. Legal basis and aim: Is the interference “in accordance with the law” and pursuing a listed legitimate aim (e.g., public safety, prevention of crime)?
5. Proportionality: Apply the proportionality test:
   • Is the objective sufficiently important?
   • Is there a rational connection between the measure and the aim?
   • Could a less intrusive measure achieve the aim?
   • Does the measure strike a fair balance between individual rights and the interests of the community?
6. Section 3 analysis: Can the court interpret the legislation compatibly without altering a core feature of the scheme?
7. If not, section 4: Should the court make a declaration of incompatibility?
8. Remedies (s.8): What relief is just and appropriate? Consider declarations, quashing orders, mandatory orders, damages (only if needed for “just satisfaction”).
9. Time limit (s.7): Has the claim been brought within one year? If late, explain why the court should allow it.

When advising public bodies:

• Audit policies for compatibility with Articles 2–3 (absolute), and qualified rights (8–11).
• Keep clear reasons showing the legal basis, legitimate aim, and proportionality analysis.
• Train decision‑makers on how to record balancing exercises and alternatives considered.

For litigation strategy:

• Use section 2 carefully: marshal the closest Strasbourg and domestic authorities and show a coherent line.
• In private law disputes (e.g., privacy, employment with public functions), frame submissions so the court, as a public authority, applies a rights‑compatible approach.
• Consider remedies early: an early concession and policy change can reduce exposure to damages and costs.

Common pitfalls:

• Treating section 3 as optional: it is a strong duty, not a last resort.
• Overreliance on damages: often a declaration or a quashing order is the primary remedy.
• Ignoring the one‑year limit or the “victim” requirement.

Summary Checklist

• Pin down the relevant Convention right(s) and whether the act is by a public authority
• Apply the proportionality test for qualified rights; remember absolute rights admit no justification
• Use section 3 robustly; if it cannot work, consider a section 4 declaration
• Cite Strasbourg authority under section 2 and explain alignment or justified departure
• Check standing (victim), time limit (one year), and appropriate remedies under sections 7–9
• Remember courts are public authorities: rights shape the common law and private disputes
• If a declaration is made, note the section 10 remedial order route and Parliamentary response

Quick Reference