Seminar 5: HUMAN RIGHTS IN THE UNITED KINGDOM

Essential reading:
** M. Elliot and R. Thomas, 687-742
Questions
1. What is the traditional British approach to human rights?
Recognise the notion liberties over right

2.

What was the significance of the European Convention on Human Rights in British Law before the
enactment of the Human Rights Act 1998?

3.

What are the legal and political effects of the Human Rights Act 1998?

Sections 4 and 10[edit]

Sections 4 and 10 allows courts to issue a declaration of incompatibility where it is impossible to use
section 3 to interpret primary or subordinate legislation to be compatible with the articles of the European
Convention of Human Rights, which are also part of the Human Rights Act.[7] In these cases, interpretation
to comply may conflict with legislative intent.[8] It is considered a measure of last resort. A range of
superior courts can issue a declaration of incompatibility.[7]
A declaration of incompatibility is not binding on the parties to the proceedings in which it is made,[7] nor
can a declaration invalidate legislation.[9] Section 4 therefore achieves its aim through political rather than
legal means.
Section 10 gives a government minister the power to make a "remedial order" in response to either

a declaration of incompatibility, from which there is no possibility of appeal,[10] or

a ruling of the European Court of Human Rights

A remedial order may "make such amendments to the legislation as [the Minister] considers necessary to
remove the incompatibility".[11] Remedial orders do not require full legislative approval,[9] but must be
approved by resolutions of each House of Parliament. In especially urgent cases, Parliamentary approval
may be retroactive.[12]
Remedial orders may have retroactive effect, but no one may be guilty of a criminal offence solely as the
result of the retroactive effect of a remedial order.[13]
Section 10 has been used to make small adjustments to bring legislation into line with Convention rights
although entirely new pieces of legislation are sometimes necessary.[14]
As of April 2013, 28 declarations of incompatibility have been issued, of which[15]

8 have been struck down on appeal

1 is pending appeal, as of April 2013

15 have been remedied through the ordinary legislative process (including amendment or repeal of
the offending legislation).

3 have been addressed through remedial orders

1 has not been remedied.

The one case not to have been remedied, as of April 2013, is Smith v. Scott, concerning the right of serving
prisoners to vote in the UK.
Other sections
Although the Act, by its own terms, applies only to public bodies, it has had increasing influence on private
law litigation between individual citizens leading some academics to state that it has horizontal effect as
well as vertical effect (as in disputes between the state and citizens). This is because section 6(1) of the
Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with
human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to
act in compatibility with the Convention even when an action is a private one between two citizens.
4.

The meaning of public authority is one of the main features which has been raised by the HRA 1998.
Discuss
Two types of public authority
The intention of Parliament was that a wide range of bodies performing public functions would fall within
the obligation under section 6 to act in a manner compatible with the Convention rights established
under the Act.However, while the Convention had been designed to protect the individual from abuse
of power by the State, the Human Rights Act was enacted at a time when the map of the public sector
had been redrawn, as privatisation and contracting-out had, over several decades, increased the role of
the private and voluntary sectors in the provision of public services. This development was
acknowledged and considered by those who drafted and debated the Act. In particular, it was clearly
envisaged that the Act would apply beyond activities undertaken by purely State bodies, to those
functions performed on behalf of the State by private or voluntary sector bodies, acting under either
statute or under contract. The Act was therefore designed to apply human rights guarantees beyond the
obvious governmental bodies. Section 6 identified two distinct categories of public authorities which
would have a duty to comply with the Convention rights.
First, under section 6(3)(a), pure public authorities (such as government departments, local
authorities, or the police) are required to comply with Convention rights in all their activities, both
when discharging intrinsically public functions and also when performing functions which could be
done by any private body.
Seventh Report of Session 2003-04
as a pure public authority comply with the non-discrimination standards imposed by Article 14 of the
Convention not only in its provision of public housing but also in its dealings with building contractors.
Second, under section 6(3)(b), those who exercise some public functions but are not pure public
authorities are required to comply with Convention human rights when they are exercising a function
of a public nature but not when doing something where the nature of the act is private (section 6(5)).
So, for example, a private security firm would be required to comply with Convention rights in its
running of a prison, but not in its provision of security to a supermarket. These bodies to which section
6(3)(b) applies have been termed hybrid or functional public authorities.
The term hybrid public authority is unhelpfulit is not the intrinsic nature of these bodies which
brings them within the ambit of the Act, it is the nature of the functions they perform which is
determinative. A body could be liable under the Act one day while delivering functions under contract
to a pure public authority; the next day, if the contract had ended, it might become again a purely
private body without any alteration to its intrinsic nature. In the remainder of this report we will use the
term functional public authority to refer to a body to which section 6(3)(b) of the Act might apply.
The problem
Only those bodies which fall within either of these categories (pure or functional public authorities)
have a direct obligation under the Act to comply with Convention rights.4 The meaning of public
authority is therefore crucial to securing comprehensive human rights protection.
The Act was intended to be comprehensive in providing effective protection of the rights of individuals
and effective redress for those whose rights had been breached. But, since the Act came into force in

October 2000, a number of court decisions have applied a restrictive definition of public authority
under section 6(3)(b) of the Act, which would exclude many service providers from the provision of
section 6(1) which makes it unlawful for a public authority to act in a way which is incompatible with
a Convention right. The consequence would be to exclude many of those receiving those services
from the Acts protection. The problem is not one that matters solely in relation to litigationwe have
also found evidence of a lack of understanding on the part of some public authorities of their status, and
their concomitant obligations and responsibilities.
The law on the meaning of public authority continues to be the subject of judicial development.
Nevertheless, we are convinced that the problems disclosed by the judicial application of the Act to
date are sufficiently significant to need serious and urgent attention, not only by the courts, but also by
both government and Parliament.
In this report, we examine the development of the law on the meaning of public authority under
section 6 of the Human Rights Act, consider how it may affect protection
3 Courts and tribunals are specifically stated to be public authorities (in all their activities) under section
6(3)(a).
4 We discuss the extent of indirect obligations later in this report; see paragraphs 8688.
The Meaning of Public Authority under the Human Rights Act 7
of human rights within the UK, and assess the measures that might be taken to address the problems we
identify.
5.

The Human Rights Act challenges the principle of Parliamentary Supremacy just as the membership to
the European Union does. Discuss
The Human Rights Act 1998 confirmed the UK's commitment to the European Convention on Human
Rights. In a white paper, the government expressed that to make provision in the Bill for the courts to set
aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament
which under our present constitutional arrangements they do not possess, and would be likely on occasions
to draw the judiciary into serious conflict with Parliament. According to the theory that a parliament
cannot bind its successors, any form of a Bill of Rights cannot be entrenched, and a subsequent parliament
could repeal the act. In the government's words, "[It is our tradition] to allow any Act of Parliament to be
amended or repealed by a subsequent Act of Parliament." However, it would have been possible to apply
human rights rules to previous (rather than future) legislation. The government also confirmed that it had
no plans to devise a special [entrenchment] arrangement for the bill.
Instead, it would be for courts to interpret legislation consistently with the Convention, if such an
interpretation were possible. This system confirmed the formal authority of parliament, while allowing
judicial oversight. A court cannot strike down legislation.
6. What is a declaration of incompatibility? Explain its legal effect.
A declaration of incompatibility is a declaration issued by judges in the United Kingdom that they consider
that the terms of a statute to be incompatible with the UK's obligations under the Human Rights Act 1998,
which incorporated the European Convention of Human Rights into the UK domestic law.
Section 3(1) of the Human Rights Act 1998 reads as follows: "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". Where the court determines a piece of legislation is inconsistent with the Convention
rights, the court can issue a declaration of incompatibility under section 4 of the Human Rights Act 1998.
[1] However, the declaration of incompatibility is often seen as a last resort as the judiciary will attempt to
interpret primary legislation as being compatible.[2] Such a declaration will only be issued if such a reading
is not possible.
Once the court has issued a declaration of incompatibility, the law remains the same until Parliament
removes the incompatibility.[3] The courts must still apply the legislation as it is and the parties to the
actual case are unaffected by the declaration. Hence, the declaration has no actual legal effect and the
parties neither gain nor lose by it.
7. Could the Human Rights Act be regarded as the codified British Constitution?

8.

Does the UK need a British Bill of Rights?

There have been many times throughout the last century when certain political groups have called
for a bill of rights for the UK. One particularly strong argument for this would be the symbolism
invoked by having a bill of rights clearly showing that the citizens have rights enshrined in law. A
common counter argument of this is that it is not worth the cost and political time of drafting such
a bill just for symbolic purposes when all of the rights enshrined are already present in UK law.
One particular problem with implementing a bill of rights in the UK is that any bill would have to
be in conjunction with the European Convention on Human Rights. The Human Rights Act is in
itself a list of rights which are conferred on every citizen and in that sense this perhaps weakens
the argument for a need for a bill of rights. It can also be argued that if any bill must be in line
with the European Convention it will perhaps not go any further than the rights already provided
for.
Plans to introduce a UK Bill of Rights
The issue of a proposed bill of rights has come to light in recent months with the Governments
decision earlier in the year to launch an independent commission to look into a proposed
introduction of a bill of rights in the UK and examine how it would sit with human rights laws. A
final report from the commission is due by the end of 2012.
Whether the UK should have a bill of rights is a subjective decision in which people may have a
variety of different opinions. Indeed, when other countries view the UK democratic system it
would be perhaps advantageous at least symbolically to be able to show a clear set of rights for
individuals. As to whether the UK needs a bill of rights the answer seems fairly clear; it has
survived for this long without such a bill, and with the introduction of the European Convention
on Human Rights it could be argued that citizens of the UK now have a far more clear set of
rights than they have done at anytime previously.
It may be that any proposed bill of rights would be an attempt to usurp the Human Rights Act: the
Government has continually refused to give prisoners the right to vote (something which they
should do under the Human Rights Act). But any attempt to limit the powers of the Human Rights
Act through a bill of rights would be extremely controversial.