Human Rights Act 1998

European Convention of Human Rights(ECHR) is drawn up by the Council of Europe after

World War 2. The European Court of Human Rights is located at Strasbourg. The Convention
sets out the rights and basic freedoms that people are entitled to expect.

The Human Rights Act 1998(HRA) incorporates the rights enshrined by the European
Convention of Human Rights into domestic law.

Prior to the Human Rights Act 1998, a person can bring a case to court when the state has
ratified the Convention. If a breach of rights is recognised by courts, UK will then amend their
laws (that are in contrast with the ECHR), this may be expensive and slow. As the ratification of
the Convention is not incorporation into domestic law, there is supremacy of the Parliament,
hence judges have no jurisdictional basis on which they could employ the Convention. In the R v
Inland Revenue Commissioner’s case it was held that will of parliament is upheld where the
statute is clear and unambiguous. This position changed radically with the passing of Human
Rights Act incorporating the Convention into domestic law.

The Human Rights Act protects the rights such as the right to life (Article 2).There is no
violation where a loss of life is due to reasonable self-defence and necessary for lawful arrest.
However, the scope of Article 2 is broad and vague and it is unclear as to the duty that is upheld
by the state providing social and economic circumstances to uphold the right to life. For
example, ECtHR recognises the need for state to impose death penalty.

A case in the ECtHR would be Mcgann, Farrell and Savage v UK. In this case, it was held by the
court that the information regarding the movement of the suspected terrorists was sufficient
hence the shooting of the suspects by the security forces did not violate Article 2. In addition to
the inadequate control of the security force, the court held that killing was ‘more than absolutely
necessary’.

In the case of Pretty v DPP, Diane was a victim suffering from motor neurone disease. The court
held that the Article 2 that protects the sanctity of life did not entail a right to terminate one’s
owns life.

Article 5 is a right to liberty and security. However, this does not include lawful arrest and
detention. It includes a right to be informed of the reasons of arrest and charges being brought as
well as the right to be released pending trial.
In the case of Steel v UK, the arrest of protesters breached Article 5 on the grounds that it was
peaceful and there was no obstruction or provocation. Also in the case of Austin v Commissioner
Police of the Metropolis, there was a cordon of 3000 anti-capitalist demonstrators. This did not
violate the Article 5 as the arrest was lawful, proportionate and was not longer than necessary.
(Hence individual protection are given up in the expense of the interest of wider community)

It can be seen in this case that the rights are protected under the articles in the ECtHR whereas
the UK courts uphold such rights. HRA incorporation allows the rights to be enforced in the UK
cases.

Human Rights Act incorporates the Convention into domestic law which strengthens the
protection given to individuals and provides improved remedies if rights are violated. If rights
are violated, individuals can apply directly to the UK courts and do not have to go all the way to
Strasbourg. 

S.2 HRA 1998 states that domestic judiciary must take into account the Convention as relevant
to the case although it is not bound by it. The UK Courts have to interpret all legislation in a way
which is compatible with the Convention rights ‘so far it is possible to do so’. This is much
further than just allowing ambiguities to be interpreted in favour of the Convention. However it
is a weak obligation as courts are not bound to follow but it is still better than before as courts do
not even need to consider the Convention. Section 2 does not give much impact on English law
as it is not binding, but may be more impactful if it is.

S.3 HRA 1998 requires the primary and secondary legislation, whenever enacted, to be
interpreted and applied in a manner which is consistent with the Convention. This promotes
human rights as it ensures that laws that are created comply with the ECHR which has a
beneficial impact on the English law. However, it is clearly stated in s.3(2) that this requirement
will not affect the validity of existing primary and secondary legislation that are incompatible
due to parliamentary supremacy. Hence, there is not much beneficial impact as the rights are not
protected and the status of the legislations would be same as preHRA. ECHR law are not
enforceable when there is a conflict.

S.4 HRA states that courts can declare incompatibility where legislation is worded in a way that
makes it impossible to be interpreted to comply with the ECHR. The power to amend lies with
the Parliament although a fast track legislative procedure will be employed to facilitate rapid
parliamentary action and for ministers to make necessary amendments to the legislation to
remove incompatibility. This is a beneficial impact to the protection of individual rights as
changes can be made to be in line with the ECHR, which enables people to enjoy the benefits in
the future.
A remedial order under s.10 may be made under s.10. However if Parliament chooses not to
amend, the ECHR is not enforced. Also, s.4 has no effect on the case that has been brought to
court as constructing AOP prevail. (Thus individual rights are not protected if they are the ones
bringing the case to courts.)

S.6 HRA makes it unlawful for public authority to act in a way that is incompatible with
Convention rights. Public authority is any person with public functions hence this includes courts
therefore legal proceedings should apply s.6 of HRA.

As illustrated in Douglas v Hello! Case, the unauthorized publication of Michael Douglas’s

wedding breached Article 8. Although the legal proceedings were between private parties, the
Convention was relevant as court is a public authority and must follow ECHR. Hence private
parties are indirectly affected.

s.7 states that only the victim of the unlawful act may bring proceedings against public authority.
If it has been recognised that the public authority has acted unlawfully, relief may be granted
under s.8. This further protects individuals as it deters public authority to act unlawfully.
However, it is only limited to a range of people and is stricter than sufficient interest test.
Pressure groups cannot bring issues to courts as they are not considered ‘victims’ under HRA.

Article 15 states that a state member can derogate from ECHR in the time of war and emergency.
However a notice must be given by the Secretary General. This does not enforce the ECHR
hence does not protect individual rights.

Advantages of HRA is that it can be heard domestically so people can be more aware of their
rights compared to matters heard in Strasbourg. More people will be willing to bring matters to
court and thus strengthens human rights. Also, UK courts have developed knowledge of its
provisions as the decisions have been challenged in Strasbourg. Hence incorporation of tried and
tested rights in the domestic law will be easier. However, there is no impact where derogations
are used under Art 15 when ministers depart from ECHR in times of emergencies. 

HRA has much beneficial impact however it cannot enjoy greater impact unless human rights are
entrenched and parliamentary sovereignty forgone to enforce ECHR.