Public law

HUMAN RIGHT ACT 1998

In contrast to countries with a written constitution where individual freedoms are usually ‘positive’, ie
defined and protected in a Bill of Rights; the civil liberties enjoyed by citizens of the UK have,
traditionally, been described as ‘residual’. What is meant by this is that citizens have been free to do as
they please provided their actions have not contravened the law.

In the UK Judges would prevent governments from taking actions for which they did not have legal
power as in the classic case of Entick v Carrington. If any problems remained, Parliament would enact
legislation to deal with the matter. Unfortunately, that is not always what happened. Sometimes judges
would decide that public authorities, such as the police, could act, simply because there was no law to
say that they could not, as in the telephone tapping case of Malone v Metropolitan Police
Commissioner.

Legislation which curtails freedom includes, for example, public order legislation, laws on obscenity,
laws to protect national security, and so on. At the same token, some legislation confers rights, eg race
relations, and sex equality. Traditionally the courts have viewed their role as being to protect liberty.
Note, however, that under the doctrine of parliamentary sovereignty the government is often able to
pass primary legislation that cannot be challenged by the courts. Civil liberties groups complain from
time to time that such measures make significant inroads into traditional freedoms.

The UK has been a party to the ECHR since 1951. Even before the HRA, the courts of this country could
refer to the provisions of the convention to help interpret ambiguous legislation: R v Secretary of State
ex parte Brind. The courts had also said that breaches of the ECHR would encourage them to judicially
review a minister’s decision and hold it unreasonable and therefore illegal; R v Ministry of Defence ex
parte Smith.

The incorporation of most aspects of the European Convention on Human Rights in the form of the
Human Rights Act 1998 has started to change the whole philosophy of civil rights in the UK. There are
now directly enforceable legal rights to privacy, family life, freedom of expression and public association.

The HRA is a UK Act of Parliament that received Royal Assent on November 9, 1998 and came into force
on October 1, 2000. Its aim was to incorporate the rights and freedoms protected by the ECHR.

The HRA has two basic aims:

 To bring the rights under the ECHR under the UK courts
 To encourage a culture of respect for human rights among public authorities.

Inevitably, it is harder to evaluate whether such a culture has developed. The former Lord Chancellor,
Lord Irvine, defined a human rights culture in public life as a culture where public authorities are
'habitually, automatically responsive to human rights considerations' in all aspects of their work.

Why is a Bill of Rights important?

The common law is inadequate to protect human rights; it lays down negative as opposed to positive
rights. For example, there is no positive common law right to freedom of speech but merely a number of
rules about what cannot be said, ie whilst rights are given to the individual by the common law and
statute, an individual would have to search through a host of cases and statutory provisions to find out
what his civil rights were. Furthermore, the common law courts did not recognize all rights, for example,
the right to privacy, Malone v Metropolitan Police Commission. It is much better for such rights to be

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contained in one document which would be fixed in the mind of each citizen, e.g. the basic rights
contained in the American constitution are known by most United States citizens.

The UK lacks a written constitution. In countries which such a written constitution the courts are free to
strike down legislation that is in breach of the constitution. In the UK the concept of parliamentary
sovereignty means that Parliament can do no wrong; so long as an Act receives the approval of both
Houses of Parliament and the assent of the monarch the courts are bound to apply it even if it does
interfere with what elsewhere would be basic civil liberties.

The apparent reluctance of the courts to trespass on the right of Parliament to enact any such legislation
as it sees fit further suggests that Parliament ought to be constrained by a document that sets out and
protects basic human rights.

HRA-Bill of Rights
The Human Rights Act 1998 has all the potential of a Bill of Rights. It can fundamentally transform the
lives of UK citizens as well as of everyone living in the country. If used properly it can help build a human
rights culture that can improve public services and hence the lives of everybody that uses them.
Furthermore, it can strengthen the feeling of citizenship and can become the country's new unifying
symbol. The principles underlying the Act can be used to teach individuals how to treat each other,
creating a human rights-friendly behavior that is adopted not because of fears for litigation but because
it is consciously chosen as the best and most enjoyable approach.

More importantly, despite the potential of the Act in becoming the country's first Bill of Rights, it is still
not treated as such. The values underlying it are mostly seen as legal guarantees rather than a code of
behavior leading to a human rights culture. Public services including the NHS, social services, council
services, public transport and schools are becoming more vigilant for human rights abuses. However,
this is done more because of fears from past litigation.

Although there have been improvements in this area particularly with the introduction of new rights,
the reform of a number of public services and the establishment of a strong human rights jurisprudence,
there is still a long way before the Act fully delivers what it promised to do. Particularly in relation to its
impact on UK citizens, the Act is still seen as a lawyer's text and is not used as a code of behavior that
can enhance the quality of living. Case law is indeed important particularly where the Act introduced
rights that could not be previously protected; however, it is not the only way in spreading a human
rights culture.

The Parliamentary Joint Committee of Human Rights criticized the government for not delivering what
they promised in using the Act to improve public services for all UK citizens. In particular, the Committee
said: "We have not found evidence of the rapid development of awareness of a culture of respect for
human rights and its implications throughout society, and what awareness there is often appears partial
or ill-informed. We fear that the high-water mark has been passed, and that awareness of human rights
is ebbing, both within public authorities and within the public at large". (Joint Committee of Human
Rights 2002-3: Summary). In short, although improvement has been made - especially in criminal justice
and immigration - front line services are still behind in creating and maintaining a human rights culture
based on the Act.

Human Rights Act impact on the constitution is perhaps demonstrated by the hostility it has generated
in some quarters for according too much value to rights as opposed to responsibilities. Before the 2010
election the Conservative Party indicated that it would repeal the legislation. It has, according to their

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supporters, generated much public debate about fundamental freedoms and, although governments
may still propose legislation which flouts human rights provisions, they are called upon as never before
to justify these publicly. Others would point to the sorry state of civil liberties in Britain and argue that
the convention is deficient in two respects: it provides for very minimal level of protection of rights and,
in concentrating on individual political rights, it ignores social and economic ones.

The coalition’s government program for Government agreed in 2010 by the Liberal democrat and
Conservative Parties stated: 'We will establish a commission to investigate the creation of a British Bill of
Rights that incorporates and builds on all our obligations under the ECHR, ensures that these rights
continue to be enshrined in British law, and protects and extends British liberties, we will seek to
promote a better understanding of the true scope of these obligations and liberties.'

Fairly predictably, given the fundamental disagreements between the parties and their appointees on
the Commission, no consensus was reached as to the next steps when it reported in December 2012.

Is the European Convention on Human Rights the most desirable Bill of Rights?
The ECHR is over 60 years old. It was mooted and designed in the years immediately following the end
of the Second World War. Can it really be said to be relevant to what is today a very different world?

It is drafted in very general terms. UK judges are used to specifically worded statues that they can and
do interpret literally. Will UK judges be able to deal with such generally worded provisions that will
require more than a mere literal interpretation? Even if they are will they be accused of making law and
thereby come into conflict with the legislature?

The nature of the rights protected under the convention is open to question. For example the right to
liberty and security of the person (art 5) is expressly subject to a number of exceptions allowing, for
example, the lawful detention of person for the prevention of infectious diseases, of persons of unsound
mind, of alcoholic, of vagrants and of drug addicts. Article 11 which protects the right of freedom of
assembly etc is subjected to restrictions – in particular governments can argue national security as a
legitimate reason for denying such a freedom. Finally, art 15 allows a government in time of war or
other public emergency to ignore certain of the Convention’s provisions. What is a public emergency can
be a very subjective matter.

European Convention of Human Rights

This is an international treaty that was drafted on the 4th of November 1950 by the Council of Europe, a
regional body that now comprises 51 member states. The body principally responsible for the
interpretation and application of the Convention is the ECtHR, which sits in Strasbourg.

The ECHR is structured in the form of Articles of the original convention ie the Convention for the
Protection of Human Rights and Fundamental Freedoms, to which all states (known as High Contracting
Parties) who have signed the Convention are subject and protocols which were drafted subsequently.
Individual member states have to decide whether or not they will adopt each protocol. As of January
2010, fifteen protocols to the Convention have been opened for signature. These can be divided into
two main groups: those amending the framework of the convention system, and those expanding the
rights that can be protected. The former require unanimous ratification by member states before
coming into force, while the latter require a certain number of states to sign before coming into force.
The United Kingdom has adopted the First and Sixth Protocols only.

The First Protocol contains three different rights in which the signatories could not agree to place in the
Convention itself. Monaco and Switzerland have signed but never ratified Protocol 1.

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Article 1 of Protocol 1 provides for the right to the peaceful enjoyment of one's possessions. Article 1
protects the rights of 'legal persons', which includes companies, to the peaceful enjoyment of their
possessions. A state may seize property in the 'public interest' and subject to the general law and
international law.
Article 2 of Protocol 1 provides for the right not to be denied an education and the right for parents to
have their children educated in accordance with their religious and other views. It does not however
guarantee any particular level of education or of any particular quality. Thus under Article 2 a state must
respect the religious and philosophical convictions of parents in relation to the education of their
children. provided the education given is satisfactory (thus protecting the right of the children to an
education), the state should permit the parents to exercise their beliefs in relation to home schooling.
Article 3 of Protocol 1 provides for the right to regular, free and fair elections.

Articles of the Convention

The ECHR contains twelve fundamental rights and sovereignties. A further five are added by the first and
sixth practices. Some moralities are 'unqualified rights' which means they are absolute. There is no need
for the Court to consider whether the action of the body making the decision was reasonable. It only has
to look at whether a Convention Right was violated and there is no need for the Court to ruminate
whether the action of the body making the verdict was reasonable. Examples of such rights are:
Article 3 - Prohibition of torture
Article 4 - Prohibition of slavery
Article 7 - No punishment without law
Article 9 - Freedom of thought, conscience, and Religion

The remaining Convention Articles contain qualifying criteria. Article 12, for example, protects the right
to marry and found a family, but qualifies this by restricting the right to marriage according to the
domestic law of the relevant state. The limitations take two principal forms.
The first relates to legitimate aims that a state may pursue which restrict the protection rights. These
are:
 The interests of national security, public safety or the economic well-being of the country
 Prevention of disorder or crime
 The protection of health or morals
 The protection of the rights or freedoms of others
 The protection of information received in confidence.
 Maintaining the authority and impartiality of the judiciary.

The second limitation is according to ‘necessity’, in other words limitations to the right are required to
be ‘necessary in a democratic society’. This criterion introduces the concept of proportionality, which is
an established tool of judicial interpretation under European law. Proportionality requires the action
taken (the restriction) must be no more than is necessary to achieve a legitimate aim.

Article 15 permits a state to derogate from the Convention ‘in time of war or other emergency
threatening the life of the nation’. The effect of this is that during the period of derogation, the
Convention right is not protected. Derogation was used by the UK government in relation to the
Prevention of Terrorism (Temporary Provision) Acts 1974-1989, permitting the detention of terrorist
suspects for up to seven days without access to a court of law, which was otherwise in contravention of
Article 5 (the right to liberty); Brogan v UK.

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The Convention's first Article obliges all signatory countries to secure the rights included in its clauses
for everyone in their jurisdiction. Therefore, apart from effective laws, member states need to establish
procedures that provide effective remedies in case a right protected in the ECHR is breached.

Under Article 2 of the Convention (and implemented by the Act), everyone’s right to life shall be
protected by law. This means that no citizen shall be deprived of his life intentionally, except in the
situation where death results from the sentence of a court in faithfulness to the law.

Article 3 provides the right of protection from torture, inhuman or degrading treatment or punishment.
Articles provide for no unique circumstances in which a public body can interfere and are hence referred
to as ‘absolute’ rights.

Extradition-the process whereby a person is returned to or sent to another jurisidiction to stand trial-
have also been considered under article 3.

Article 4 of the European Convention on Human Rights prohibits slavery and forced labour. Conscription,
national service, prison labour, service exacted in cases of emergency or calamity, and "normal civic
obligations" are exempted from these definitions.

Article 5 refers to the liberty of an individual and provides that every individual has the right to liberty
and security of their person. There are extraordinary positions in which liberty may lawfully be taken
away .A auxiliary right ascends under Article 6, relating to access to justice and a fair trial; this provides
that ‘in determination of his civil rights and commitments or of any criminal charge against him, every
individual has the right to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law’. This right may not apply in exceptional circumstances (e.g. in
times of war or public emergency) and mental health review tribunals have been known to be excluded
from this definition. These rights are those individuals charged with a criminal offence shall be presumed
innocent until proven guilty; they must be informed punctually, with detail of the circumstances upon
being charged; they must have adequate time and facilities to prepare a defence, along with having
access to legal representation should they so require it; and they must have the right to speak and scan
any watchers, with the aid of an interpreter should a potential language barrier raise difficulties. A
further point to note under this Article is that, unless the above derogations apply, retrospective laws
cannot be introduced which result in the felonious liability of an individual for acts which did not so
impose danger at the time of their contract.

Article 8 grants every individual with the right to respect for their private and family life. There are only
limited circumstances in which they can interfere in a society these include the grounds of national
security, public safety, the prevention of disorder or crime or for the protection of ‘health and morals’.
Wide interpretation has been given in relation to the exercise of this right; a balance of the interests of a
democratic society must be contemplated against the rights of each individual.

Freedom of thought, morality and religion is granted by Article 9. Similar margins exist as for those
relating to Article 8.

Each individual is given freedom of thought and expression under Article 10. This includes the
sovereignty to hold approaches and receive/disclose information without snooping by any public power.
Once again, the above allowances relating to Article 8 and 9 also apply here.

Article 14 relates to perception. It provides that the specific rights and freedoms contained within the
Convention must not be affected by discrimination on a range of grounds (including that of sex, race,

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colour, language and religion). This Article will therefore only be important in relation to a claim that
another Article has been breached and does not stand alone as a right per se.

Enforcing these rights at Strasbourg

The Convention established the ECtHR. Any person who feels his or her rights have been violated under
the Convention by a state party can take a case to the Court. Judgments finding violations are binding on
the States concerned and they are obliged to execute them. The Committee of Ministers of the Council
of Europe monitors the execution of judgments, particularly to ensure payment of the amounts awarded
by the Court to the applicants in compensation for the damage they have sustained. The establishment
of a Court to protect individuals from human rights violations is an innovative feature for an
international convention on human rights, as it gives the individual an active role on the international
arena (traditionally, only states are considered actors in international law). The European Convention is
still the only international human rights agreement providing such a high degree of individual
protection. State parties can also take cases against other state parties to the Court, although this power
is rarely used.

Since November 1998, under the procedure introduced under Protocol 11, there has been a permanent
ECtHR, replacing the previous structure of Commission and Court. The new Court comprises 40 judges
(one from each member state) allocated to committees (three judges to each committee), chambers
(comprising seven judges) and a Grand Chamber of 17 judges. The Court is assisted by a single Registry.
The revised procedure involves an applicant filing his application with the Court’s Registry, which assigns
it to a chamber and a judge rapporteur who has responsibility for overseeing the progress of the
application. A committee, or tribunal, of judges considers the admissible; the ruling is communicated to
the member state against whom the application has been made. An application will only need to be
referred to the Grand Chamber in exceptional cases.

Protocol 11 was designed to deal with the backlog of pending cases by establishing the Court and its
judges as a full-time institution, by simplifying the procedure and reducing the length of proceedings.
However, as the workload of the Court continued to increase, the contracting states agreed that further
reforms were necessary and in May 2004 the Council of Europe Committee of Ministers adopted
Protocol 14 to the European Convention on Human Rights. Protocol 14 was drafted with the aim of
reducing the workload of the Court and that of the Committee of Ministers of the Council of Europe,
which supervises the execution of judgments, so that the Court could focus on cases that raise
important human rights issues.

The Constitutional Status of the Human Rights Act

Given the doctrine of parliamentary sovereignty entrenchment of domestic legislation in the UK is
problematic. Generally, Parliament cannot bind its successors. Accordingly, it cannot pass ‘unrepealable’
Acts. Thus, in theory, it would be impossible to pass a Bill of Rights which could be entrenched for
evermore.

The Human Rights Act itself is not entrenched at all. It can be repealed by the legislative process in
Parliament. Therefore, the Human Rights Act is not at all destructive of Parliamentary Sovereignty or
Parliamentary Supremacy. Parliament is still the supreme law-making body in the UK - it can make or
unmake any law, including the Human Rights Act itself or legislation that is incompatible with the
Convention.

Thus, consistent with the concept of Parliamentary sovereignty, the HRA has no higher status in law. It
can accordingly be amended or repealed, although the non-legal, moral and political constraints would

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make this difficult. Parliamentary supremacy is also protected in that judges may not declare Acts
invalid, but may grant ‘declarations of incompatibility’. This device also protects the separation of
powers between the judiciary and parliament.

The HRA does, however, fall into that category of legislation recognized at common law as
constitutional. As Lord Hoffmann explained in R v Secretary of State for the Home Department, ex
parte Simms, Same, ex parte O’Brien (1999), this means that, in the absence of express language or
necessary implication to the contrary, the courts presume that even the most general words used in
primary Acts are intended to be subject to the basic rights of the individual. Hence the HRA can be
regarded as entrenched to the extent that it will not be accidentally or impliedly repealed as far as the
courts are concerned. Only express repeal can amend or remove the Act.

The structure of the Act

Section 1 sets out the convention rights that are enforceable.

Section 2 requires courts and tribunals to ‘take into account’ judgments, decisions and opinions made
under the ECtHR. Section 2 does not affect the validity or continued operation or enforcement of
incompatible primary legislation, nor that of subordinate legislation where primary legislation makes the
removal of any incompatibility impossible. Inevitably, the UK courts have had to decide to what extent
this phrasing creates an obligation to follow the decisions with which they disagree. Considering
strengthens the protection of rights as courts are guided by the decisions made by the ECtHR. However,
the protection of rights is limited by the fact that courts only have to take into account but are not
bound by the decisions of the ECtHR.

The section does not state that the courts must ‘apply’ such decisions but as the main aim of the Act is
to avoid individuals having to petition the ECtHR, the domestic courts are unlikely to refuse to apply any
caselaw favorable to the claimant.

In Re P and others, the Adoption (Northern Ireland) Order 1987 prevented an unmarried couple from
being considered as adaptors of a child. The applicants argued that this was a breach of their convention
rights under article 14, because it amounted to discrimination on the grounds of their status as being
unmarried. The decision by the ECtHR in Frette v France (2003), appeared to allow states to exercise a
'margin of appreciation' in relation to the marital status of potential adopters. This case concerned a
single person who was homosexual who wanted to adopt. Lord Hoffman felt he was not bound by this
case as he cited EB v France (2008), where the ECtHR had made a different decision on similar facts,
although it did not expressly overrule Frette. He also used a report by Ursula Kilkey as additional
justification. He clearly sees ECtHR case law as not as a ceiling but as a 'floor' which enables him to use
creative legal arguments to justify a strengthening of rights protection.

In R v Horncastle the four conjoined cases which were the subject of this appeal the convictions were
based on the hearsay evidence of witnesses who were identifiable but who did not testify. There was no
other evidence. In two cases the witnesses had died before the trial and in two others the witnesses
claimed to have been intimidated and so were absent through fear. The defense argued that the
Supreme Court should apply the principle upheld in Al-Khawaja and Tahery v UK (2009). The ECtHR had
ruled that convictions based 'solely or decisively' on the evidence of absent witnesses were a violation of
art.6(3)(d).

The House of Lords held that the reasoning in Al-Khawaja and Tahery v UK (2009) should not be
followed, and it was not necessary under the Human Rights Act for the English courts to apply the

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"solely or decisive" test. Lord Phillips stated that if this tests were applied it would in some cases result
in acquittals or failure to prosecute where there was cogent evidence of guilt. Lord Brown questioned
whether there was justification for an absolute principle which was not mandated by the language of
art.6(3)(d). The Supreme Court noted that the ECtHR had not appreciated the safeguards to the
admissibility of hearsay evidence which existed in the Criminal Justice Act 2003.The Grand Chamber
reversed the earlier ruling and adopted the approach of the Supreme Court.

Independence from Strasbourg was also illustrated in the House of Lords' approach to Osman v United
Kingdom (1999). In Barrett v Enfield LBC (1999) Lord Brown-Wilkinson criticized Osman decision,
arguing that the ECtHR had misunderstood the relevant case law.

Section 3 requires courts and tribunals to interpret primary and subordinate legislation ‘so far as it
possible to do so’ in a way that it is compatible with convention rights. One of the tasks which judges are
required to carry out is interpreting UK legislation. In addition to existing rules of interpretation
developed under the common law (e.g. the golden rule), s. 3(1) of the HRA states;

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.

Under s.3(2)(b), the obligation to interpret primary legislation in this way will not affect the continuing
validity and enforcement of that legislation. Under s.3(2)(c), the validity and enforcement of subordinate
legislation may be made invalid by such an interpretation, unless the primary statute states that the
secondary legislation will be incompatible with Convention rights.

The interpretative obligation under s(3)(1) to read primary legislation as Convention compliant, so far as
is possible, is not dependent upon the presence of ambiguity in legislation. However, the difficulties with
interpretive obligation under s.3 is that it suggests that the obligation to interpret a statute or statutory
instrument in accordance with convention rights should arise where the legislation is ambiguous(in
common with the other common law 'rules' of statutory interpretation), but also where the legislation is
clear. The words in s.3(1) ' so far as it is possible to do so' are clearly crucial.

S3 of the HRA could require the court to depart from the unambiguous meaning that legislation would
otherwise bear subject to the constraint that this modified interpretation must be one “possible”
interpretation of the legislation. Paul Craig argues that this results in the courts adopting linguistically
strained interpretations instead of issuing declarations of incompatibility.
Fitzpatrick v Sterling Housing Association, (2001) the House of Lords held that a gay man was entitled
to take over the tenancy formerly held by his long-term male partner, now deceased, under the Housing
Act 1988. Lord Slynn said the legislation could not be interpreted to allow P's claim on the basis that he
had been living "as the husband or wife" of the deceased - if Parliament had intended such a
relationship to include same-sex partners it would surely have said so - but P could claim as "a member
of the family" living with the deceased at the time of his death. The word "family" is used in many
senses, he said, some wider than others, and if P could show (as on the facts he could) the mutual inter-
dependence, sharing of lives, caring and love, commitment and support that are rebuttably presumed to
exist between married couples, that would be enough to establish a family relationship. Lord Millet did
not discuss in detail the possibility of a declaration of incompatibility as he considered it unnecessary,
given that the majority had decided that s.3 did apply. In his dissenting judgment Lord Millet contrasted
s.3 with the wording of statutes in former colonial territories where judges were given a 'quasi
legislative power'. The wording commonly used in such statutes were that laws should be construed

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'with such modifications, adaptions, qualifications and exceptions as may be necessary to bring them in
to conformity with the constitution'.

In Ghaidan V Godin Mendoza (2004) a dispute arose over whether the words in para 2(1) schedule 1 to
the Rent Act 1977 relating to the right to succeed on death to a statutory (protected) tenancy (i.e a
person who was living with the original tenant as his or her wife or husband) could be interpreted under
s.3 of the HRA to include the deceased tenant’s same sex partner. Most of the House of Lords ruled that
it could be interpreted to include the same sex partner.

The interpretative duty was clear in the case of Principal Reporter v K (Scotland) (2010). In that case an
unmarried father had been denied the opportunity to participate in discussion concerning his natural
child’s future, on the grounds that he was not a ‘relevant person’ under section 93 of the Children
(Scotland) Act 1995. The Supreme Court ruled that there was an incompatibility between section 93 and
Article8, but that the incompatibility could be ‘cured ‘by reading in words to the statute to make the
natural father a ‘relevant person’

The above case illustrates section 3 of the HRA may require a court to give a meaning which it would
normally have, and perhaps contrary to what Parliament intended. It could be argued that these veers
close to judicial legislation and therefore, an erosion of the legislative supremacy of Parliament.
However, section 3 does not require permit courts to go against the general underlying rationale of the
legislation.
In R V A, the court “read down” (arguably distorting the meaning of) the provision to ensure the accused
received a fair trial. Lord Steyn stated the ‘the interpretive obligation under section 3 of the Act is a
strong one. It will sometimes become necessary to adopt an interpretation which linguistically may
appear strained’. The techniques to be used will not only involve the reading down of express language
in a statute but also the implications. However, Lord Hope stated ‘the rule of construction which section
3 lays down is quite unlike any previous rules of interpretation. It does not entitle the judges to act as
legislators.
Although there have been cases where it could be argued that the intention of parliament has been
subverted by the imposition of an interpretation that is linguistically strained as seen in R V A, the courts
have been clear that that a meaning cannot be imposed that goes ‘against the grain’ of the legislation as
stated in Gaidan v Godin Mendoza. Thus it has been argued that the rule of interpretation laid down in
s.3(1) which requires the court, so far as it is possible to do so, to read and give effect to legislation in a
way which is compatible with convention rights goes much further than existing rules of statutory
interpretation and represents a challenge to parliamentary supremacy.
There is a divergence of judicial opinion as to how far this power of interpretation should be used. In
Poplar Housing and Regeneration Community Association Ltd v Donoghue Lord Woolft CJ cautioned
against judges using the power to re-write legislation – what he described as straying over the line into
the area of legislating. By contrast, Lord Steyn in Rv A showed his willingness to act with complete
disregard for the niceties of legislation to achieve a reading compatible with the Convention’s demands.

The greatest threat to the autonomy of Parliament, then, is the interpretive duty imposed by section 3,
but it is possible that in utilizing their powers, the judiciary are mindful of the intention of parliament
and respectful of the constitutional boundary between interpretation and legislation.
It seems inevitable that the courts are going to have to adopt a new approach to statutory
interpretation where convention rights are concerned, rather than stick rigidly to the traditional rules of
interpretation. The tradition of the ECtHR is to be more flexible and evaluative in its exercise of its

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interpretative functions. Thus domestic judges will have a more role in assessing the merits of executive
decision making (ie its legitimacy within the context of the ECHR, whereas their role to date, at least in
theory, has been limited to scrutinsing the legality of executive action by means of judicial review).

The limits of interpretation: Strive as the judges may to interpret statutes compatibly, there are limits.
First, it is clear that the Act 1998 is not retrospective. For example, in R v Kensal (No. 2) (2001), the
House of Lords ruled that it should follow its previous decision notwithstanding that a majority of the
House now believed the precedent case to have been wrongly decided. Note, however, that this case
involved a pre-HRA precedent. The court ruled that if Parliament had intended convictions valid before
the Act came into force to be re-opened on the basis of rights conferred by the 1998 Act, it would have
said so clearly.

In Pearce v Governing Body of Mayfield School (2001), the Court of Appeal considered the issue of
gender orientation in relation to discrimination under the HRA 1998. Disruptive pupils abused a lesbian
teacher at the school in the early 1990s. Such conduct was not discriminatory under the Sex
Discrimination Act 1975. Since the Human Rights Act was not in force at the time of the conduct in
question, the applicant could not seek compensation under that Act. This was reconfirmed In Secretary
of State for the Home Department v Wainwright (2002),

The second limitation lies in the distinction between legitimate interpretation and the redrafting of
statutes; re W and B (children: Care Plan).

Section 4 provides for declarations of incompatibility. Only the High Court and above, and in Scotland
the High Court of Justiciary and Court of Session, may make declarations of incompatibility. Section 4 of
the HRA enables the senior courts to make declarations of incompatibility stating that legislation is
incompatible with Convention rights. Such declarations may cause some disquiet and discomfort among
government ministers and Parliament but, importantly they do not affect the validity, continuing
operation or enforcement of the legislative provision. Declarations of incompatibility are not binding on
the parties to the case, nor is the government or parliament compelled to amend the law to remove the
incompatibility. Declarations of incompatibility are an indication that consideration should be given by
the executive to changing the law. Rather it is, in the words of Lady Hale, to ‘warn government and
Parliament that [in the view of the courts] the United Kingdom is in breach of its international
obligations. It is then for them to decide what, if anything, to do about it’ (Baroness Hale in R (Animal
Defenders International) v Secretary of State for Culture, Media and Sport [2008] ). The declaration of
incompatibility is particularly significant in respect of parliamentary supremacy. Although the form of
parliamentary supremacy is preserved, since the primary legislation remains valid, the ruling of the court
has the practical effect that others affected by it, if it remains unchanged, will take their claims to the
ECtHR in Strasbourg. Effectively, the courts may not have the power to strike down an Act of Parliament,
but will deliver a fatal wound to it, even if Parliament and not the courts must switch off its life support.

Where a government minister does choose to change the law, s 10 and schedule 2 to the HRA provide
for an expedited procedure for amending the law by way of 'remedial orders'. Thus, the ultimate
decision whether or not to rectify the incompatibility by amending or repealing the primary legislation
rests with Parliament and the government rather than with the courts. Such a declaration thus places
political rather than legal pressure on the government and Parliament. So, while it is perhaps less likely
that Parliament will deliberately or consciously enact legislation that is incompatible with the
Convention rights, it remains open to them to do so. Thus, the legislative supremacy of Parliament is left
largely intact by the Human Rights Act 1998.

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In Bellinger v Bellinger, the House of Lords held that a person born with one sex, even after undergoing
reassignment surgery, could not lawfully marry as a person of the opposite sex within the meaning of
s.11(c) of the Matrimonial Causes Act 1973. It followed that this section interfered with the claimant's
right to respect for private life under art.8 of the ECHR and with her right to marry under art.12. The
English courts held that the non-recognition of change of gender for the purposes of marriage in s 11(c)
of the Matrimonial Causes Act 1973 was incompatible with Convention rights. A declaration of
incompatibility was granted. But the House of Lords did not consider that the issues raised in the case
were suitable for determination by courts and left the matter for Parliament, which has now enacted
the Gender Recognition Act 2004 and matches the majority of European states in permitting marriage in
the adoptive gender role.

A declaration of incompatibility was issued by the Court of Appeal in R (T, JB and AW) v Chief Constable
of Greater Manchester. At issue was the law relating to the blanket disclosure of convictions and
cautions, and the claim that these were incompatible with Art. 8 on the grounds of disproportionality.
Secondary legislation remedied the defect. The Supreme Court upheld the reasoning of the CA.

Similarly, in R v Secretary of State for the Home Department (2003) the House held that there was no
way of reading s.29 of the Crime (Sentences) Act 1997 so as to make it Convention-compatible and
issued a declaration of incompatibility. In R (Anderson) v Home Secretary, the HOL made a declaration
of incompatibility and said that the Home Secretary could not decide the minimum period that a
murderer must stay in prison. This was not a fair trial under Article 6, because a trial should be
conducted by a judge, not a politician. The government and Parliament decided upon satisfactory
legislation to implement this judgment in the Criminal Justice Act 2003.

A and Others v. Secretary of State for the Home Department(2004), the HOL held in that Part 4 of the
Anti-terrorism, Crime and Security Act 2001, under whose powers a number of non-UK nationals were
detained in Belmarsh Prison, was incompatible with the HRA. This precipitated the enactment of the
Prevention of Terrorism Act 2005 to replace Part 4 of the 2001 Act.

Such cases illustrate an increasingly robust approach to issuing declarations in contrast to the
interpretative approach in R v A. On the other hand the House of Lords have an occasion overturned
decisions by the lower courts where declarations have been issued, see for example Wilson v First
County Trust , R v Secretary of State for the Environment, Matthews v Ministry of Defence(2003) and R
(Uttley) v Secretary of State for the Home Department (2004).

In R (Nicklinson) v Ministry of Justice [2014] the Supreme Court considered whether s.2 of the Suicide
Act 1961, which makes assisting another person to commit suicide an offence, contravened Article 8
(the right to respect for private life) of the ECHR. The Court declined to make a declaration of
incompatibility, holding that it was Parliament, rather than the courts, which had the ‘institutional
competence’ to reform the law.

In s.3 of the Human Rights Committee report 'Enhancing Parliament's role in relation to human rights
judgments' the Committee was unhappy about the government response to the declaration of
incompatibility in Wright v Secretary of state for Health as the key concern of the HOL was the lack of a
right for all care workers who were to be placed on a list of individuals who were banned from working
with adults, to have the right to make representations beforehand. The government's response retained
a power for the Independent Safeguarding Authority to impose such a ban immediately. The committee
was concerned that it was still unclear how quickly a banned person would be able to get a hearing
subsequently.

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Section 6 relates to acts of public authorities. Section 6 of the HRA states:

(1) It is unlawful for a public authority to act in a way which is incompatible with a
convention right.
(3) In this section public authority includes-
A. A court or tribunal
B. Any person certain of whose functions are functions of a public nature
but does not either House of Parliament or a person exercising functions in connection with proceedings
in Parliament.

Section 6 does not define 'public authority' but it is clear that it includes government departments, local
authorities, the police and armed forces as well as 'hybrid public authorities' which, are private
organizations performing public functions. The courts have had some difficulty in deciding what is a
public authority as it is not defined in the act.

Section 6(3)(a) and (b) state public authorities include courts and tribunals and ‘any person certain
whose functions are functions of public nature’ but this definition does not include parliament.
Accordingly, whether a body is within the scope of the Act depends not on whether it is a state owned
body, but rather on whether or not a body is exercising functions of public nature.

In Aston Cantlow and Wilmote with Bilesley Parochial Church Council v Wallbank, the court stated that
relevant facts when assessing whether a function is of a public nature are:
 Whether the body is exercising powers derived from statute;
 Whether it is publicly funded;
 Whether it is taken the place of local or central government;
 Whether it is providing a public service
However, other cases have caused some confusion. In the Donoghue case the Court of Appeal appeared
to examine the nature of the body and its relationship with a pure public authority rather than the
nature of the function undertaken.

In Poplar Housing v Donoghue, the defendant had been housed by a local authority. Tower Hamlets,
which decided that she was ‘intentionally homeless’ because she had left her flat to live with her sister.
Tower Hamlets sought an order to evict her from a flat; it then discovered that her home belonged to
Poplar, a housing association that the local authority had set up and to which it had transferred much of
its housing stock. Poplar sought an order to evict the defendant, and her defense was that Poplar was a
functional public authority, and that it was a breach of her Article 8 rights for Poplar to seek to evict her.
The Court of Appeal held that Poplar was a functional public authority because of its close relation with
Tower Hamlets, which meant that its relation with the tenant was ‘enmeshed’ in the local authority’s
discharge of its own public function (but there was no breach of Article 8, because the interests of other
homeless people justified the system for obtaining possession of a flat rented to a particular person).

In R (Heather) v Leonard Cheshire Foundation, the Surrey County Council was under a statutory duty to
provide residential care for Heather. The Council contracted with a private organization, the Leonard
Cheshire Foundation, to provide this care on its behalf. The Foundation decided to close the care home
where Heather resided. Heather challenged this as a breach of her Article 8 rights and the issue before
court was whether the Foundation was exercising a function of a public nature when providing the care.
Court held that the Foundation was not exercising a function of a public nature because its contract to
provide housing to residents funded by the council did not involve any public functions. It was ‘not
standing in the shoes of the local authorities’. Lord Woolf commented that in their contracts with

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private housing providers, local authorities ought to require the providers to respect the residents’
Convention rights.

In YL v Birmingham City Council and Ors, Birmingham City Council was under a statutory duty to provide
residential care for YL. It contracted with a third party, Southern Cross Health Care, to provide this care
on its behalf. The question of whether Southern Cross was exercising a function of public nature with
regard to YL was tried as preliminary matter. The House of Lords has held that a private care home did
not perform functions of a public nature and so was not required to comply with the Human Rights Act
1998. This case has received much attention as, if the House of Lords had reached the opposite decision,
a number of private organizations could have been brought within the ambit of the Act.

In both the Heather and YL cases, the claimants would have the protection of the convention rights if
their care had been provided by the councils themselves. It is not easy to understand how the courts
decide that a function that the councils were under a statutory duty to facilitate was not a function of a
public nature if performed by a third party under a contract with the council. However, in Yarl’s Wood
Immigration Ltd v Bedfordshire Police (2008) the court held that a private company operating an
immigration detention center under a contract with the Home Office was a public authority.

It is also implicit in Section 6 that a public body maybe within the Act when exercising public functions
but not within the Act when it is not performing public functions. Initially it was thought that the HRA
would operate only vertically – against government bodies. However, by including the courts and
tribunals within the definition of public bodies, the HRA seems to allow for horizontal effect, which
extends the scope of the Act to include non-state bodies. For instance, imagine you had a neighbor who
played extremely loud music throughout the night so that your sleep was constantly disturbed. While
this would damage your home and family life, you could not bring legal action against your neighbor for
breaching your Article 8 rights because your neighbor is not a public authority. You may, however, bring
an action for statutory nuisance under S.82 of the Environmental Protection Act and hearing your case,
the court would have to take in to account your Article 8 rights. It is in this way that the HRA has indirect
horizontal effect- horizontal because it can affect relations between private bodies and indirect because
individuals cannot apply to the courts claiming that a private body has infringed their convention rights
but if they bring another case, the court must decide that the case in accordance with the convention
rights. In Campbell v MGN, Baroness Hale stated that the ‘1998 Act does not create any new cause of
action between private persons. But if there is a relevant cause of action applicable the court as a public
authority must act compatibly with both parties’ Convention rights’.

The press remains outside the scope of the HRA; hence in privacy cases the courts themselves have
become the public bodies under a duty to develop domestic law to ensure adequate protection of art 8
rights: Douglas v Hello Ltd. In Mosley v News Group Newspapers Limited (2008), Max Mosley
challenged an invasion of his private life after the News of the World exposed his involvement in a Sado-
masochistic sex act. The case resulted in Mr. Mosley being awarded £60,000 in damages. In Weller v
Associated Newspapers Ltd [2016] the children of a famous musician who were on a private outing with
their father were photographed and subsequently published. The Court of Appeal ruled that children did
not have a right to privacy by virtue of being a child, but that a child did have a reasonable expectation
of privacy and that special considerations applied to children. Among these were the fact that an older
child would have a greater awareness of privacy than a very young child; that interference with their
right to privacy might give rise to safety and security concerns. The lack of consent by parents should
carry weight. Furthermore, the court should give considerable weight to the child’s best interests. The
decision to grant an injunction against re-publication was upheld. The Supreme Court upheld an interim

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injunction restraining publication of the name of a celebrity before trial in PJS v News Group
Newspapers Ltd [2016]. This was despite the fact that the identity of the person had already been
disclosed in the press in the United States and Scotland and on social media. However, the Court ruled,
there was no public interest – in the legal sense – of the story and not to grant an injunction would add
to further disclosure and breaches of privacy. Accordingly, on balance, continuation of the interim
injunction was the best outcome.

Another example of this phenomenon is the Venables case in which the Court of Appeal granted an
indefinite injunction against the press preventing the disclosure of the identity and whereabouts of the
child-killers Thompson and Venables to protect their Article 2 right to life.

One of the justifications for restricting freedom of expression was considered in A v British
Broadcasting Corporation. A was subject to a deportation order following his conviction for sexual
offences. He claimed that if his identity became known in his country of origin he would be at risk of
death or serious harm. A court order made under s.11 of the Contempt of Court Act 1981 prohibited
disclosure of his identity. The British Broadcasting Corporation (BBC) challenged the order as being
contrary to the right to freedom of expression. The Supreme Court ruled that if the order was lifted, it
would undermine all the proceedings which had taken place since 2007. Protection of A’s identity was
essential to the ability to deport without violating A’s Article 3 rights. The exception to the principle of
open justice, and restriction of the right of the BBC to disclose A’s identity, was justified by Article 10.2 –
the need to protect the authority and impartiality of the judiciary.

In human rights adjudication the court in concerned with whether the human rights of the claimant
have in fact been infringed not with whether the administrative decision-maker properly took them into
account. A case where enforcement proceedings against public authorities were instituted was R (on the
application of Begum) v Head Teacher and Governors of Denbigh High School (2006).

A case having wide ranging implications for social services and the courts is Cheshire West and Chester
Council v P [2014] UKSC 19. In this case the appeals concerned whether the living arrangements made
for mentally incapacitated persons amounted to a deprivation of liberty contrary to Article 5. The courts
below had each ruled that the arrangements were in each of the three appellants’ best interests and did
not amount to a deprivation of liberty. The Supreme Court, however, ruled unanimously that P had
been deprived of his liberty and by a majority of four to three, that P and Q (otherwise known as MIG
and MEG) had been deprived of their liberty. The key feature of deprivation of liberty is whether the
person concerned is ‘under continuous supervision and control and is not free to leave’.

The courts have been rather cautious in their application of the Convention. Indeed Richard Edwards has
eloquently argued that a culture of ‘judicial deference’ has developed , in that judges can be reluctant to
interfere with laws enacted by a democratically elected Parliament. Indeed the judiciary has often
accepted that deference to the decisions made by the executive or legislature should be granted. This
was the position set out in the leading case of R v DPP ex p Kebilene in which the court explained the
need for deference on democratic grounds.

Furthermore in Secretary of State for the Home Department v Rehman, the HOL declined to interfere
with the Secretary of State’s decision to deport Rehman as a possible threat to national security. This
does respect the principle of the separation of powers but arguably, has greatly reduced the impact of
the HRA in protecting the rights of the individual.

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In the case of R(Gillian) v Commissioner of Police for the Metropolis, having indicated that deference
should be given to the executive regarding the need for legislation, the judgment went on to state that it
was hard to conceive of a situation where the use of powers of stop and search authorized by the
statute would be disproportionate. This case can be seen as an example of the courts failing to protect
the convention rights of the citizen, a point supported by the subsequent judgment of the ECtHR, which
unanimously found the powers to be unlawful. This can be contrasted, however, with instances in which
the courts have been proactive and vocal for their support for convention rights, such as the case of A v
Secretary of State, in which a declaration of incompatibility in respect of the Anti Terrorism, Crime and
Security Act 2001 was accompanied by stringent criticism.

Section 8 provides for remedies. The court may award as ‘it considers just and appropriate’ but this is
limited to remedies that are within the jurisdiction of the particular court or tribunal. The interpretation
of S. 8(3) HRA was considered in R (KB) and Others v Mental Health Review Tribunal. The Queen’s
Bench Division ruled that damages for breaches of human rights under statute should be no lower than
they would be for a comparable tort and should so far as possible reflect the English level of damages.

The ECtHR can award damages, but sees its functions more as to make rulings on law rather than
compensate victims. In R(Greenfield) v Secretary of State for the Home department the HOL decided
that the purpose of the HRA 1998 was not to give victims better remedies at home than they could
recover at the ECtHR. It was more important to ensure ‘just satisfaction’ and issue an order remedying
the breach or rights.

Section 10 states where a court makes a declaration of incompatibility and there is no appeal in
progress a minister may make amendments to the offending legislation to remove the incompatibility if
he or she ‘considers that there are compelling reasons’. This can be done by a new Act of Parliament
that replaces the incompatible one or, where only a small part of an Act is incompatible, it can be done
by a remedial order. A remedial order is a statutory instrument that amends the incompatible provision
in order to comply with the Convention rights.

Thus a government ministers can use a fast track procedure in s.10 to amend the law by using
subordinate legislation. While not without precedent, the power to amend primary legislation by
ministerial order is highly unusual and some critics have said that it sets a dangerous precedent which
could lead to a considerable increase in executive power. An example of a remedial order being used to
amend to an Act occurred as result of the case of B and L v UK. In this case a woman had married a man
but later divorced him and a relationship with his father. Although it was perfectly legal for the woman
to live her father-in-law, the Marriage Act 1949 prohibited them from getting married while the
woman’s first husband was still alive. The only way they could legally marry was to apply for a private
Act of Parliament giving them permission to marry. They argued that the prohibition to marry was a
breach of Art. 12, which gives them a right to marry. The ECtHR held that there was a breach of Art. 12.
Following this the Marriage Act 1949 (Remedial) Order 2006 was passed. This order removed the
prohibition on in-laws marrying.

Section 14- Article 15 has not been incorporated into domestic law under the Human Rights act 1998.
Instead a statutory procedure for derogation has been introduced under s.14. That power has been used
to suspend Article 5 in relation to suspected terrorists.

Section 19 states when a bill is before either the HOC or the HOL, the minister in charge of its progress
must declare whether or not the provisions of Bill are compatible with Convention rights. However, as

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parliament is sovereign it may proceed to enact the Bill even its declared not to comply with Convention
rights.

How the Convention is enforced in the United Kingdom

How Convention issues are be brought before the courts?
The 1998 Act does not expressly create a new procedure for raising alleged violations of Convention
rights. Section 7(1) envisages that individuals will be able to bring proceedings (or a counterclaim)
against a public body in the appropriate court or tribunal ‘as may be determined in accordance with
rules’: s7(2). Section 7(9) provides that these rules are to be made by the Lord Chancellor. Alternatively,
litigants will be allowed to rely on the Convention right or rights concerned in any legal proceedings’
{s.7(1)(b)}, legal proceedings including, for these purposes, proceedings brought by or at the instigation
of a public authority, and an appeal against the decision of a court or tribunal: s7(6) (a) and (b). Only the
victim of the alleged unlawful act is permitted to bring proceedings or rely on the Convention in legal
proceedings: s7(1). It is clear that many of the cases involving reliance on Convention rights will take the
form of applications for judicial review, given that the Act is of direct application to public bodies. The
result is that a narrower test for locus standi will be applied in applications alleging a breach of
Convention rights, as compared to applications for review generally.

Who can be the subject of these proceedings?

By virtue of s6(1) it becomes unlawful for a public authority to act {or fail to act – act s6(6)} in a way
which is incompatible with a Convention right. A Public body for these purposes includes a court or
tribunal, and ‘any person certain of whose functions are functions of a public nature, but does not
include either House of the UK Parliament or a person exercising functions in connection with
proceedings in the UK Parliament’: 6(3).

A person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
There is evidence, provided by decisions such as Poplar Housing and Regeneration Community
Association Ltd v Donoghue, that the courts will advert (will refer either in speaking or writing) to the
jurisprudence built up in relation to applications for judicial review in determining whether non
statutory bodies can be regarded as public authorities for these purposes. This is further illustrated in
cases such as R v Panel on Take over and Mergers, ex parte Datafin Ltd (1987). One can assume that
bodies such as the BBC, the Church of England and other religious bodies, universities, the governing
bodies of various sports associations, self regulatory bodies, and any organization that has taken over
what was previously a public law function, such as running prisons, could come within the scope of
public authority for the purposes of the Act, as regards their public law functions.

S.6 includes court or tribunal. This means that courts and tribunals are obliged to act compatibly with
convention rights in all that they do, including the way decide cases. The consequence of this is that,
while citizen cannot bring a case to court on the ground that a private body has infringed their
convention rights, if they can bring a case on some other cause of action, the court must take in to
account Convention rights of both parties when deciding the case.

How should the courts approach a Convention claim?

A court or tribunal called upon to do so, must interpret primary legislation and subordinate legislation
‘in a way which is compatible with the Convention rights’:s3(1). This duty applies whether the legislation
was enacted before or after the coming into force of the HRA. Section 2(1) of the HRA makes it clear that
any court or tribunal determining a question arising in connection with a Convention right must take
into account: any judgment, decision, declaration or advisory opinion of the ECtHR; any opinion of the

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Commission given in report adopted under art 31 of the Convention’; any decision of the Commission in
connection with arts 26 or 27(2) of the Convention, or any decision of the Committee of Ministers taken
under art 46 of the Convention, ‘whenever made or given, so far as, in the opinion of the court or
tribunal, it is relevant to the proceedings in which that question has arisen’.

What remedies will be available?

A court dealing with an application for judicial review of subordinate legislation would be able to declare
it to be ultra vires if it was found to incompatible with the Convention rights. The courts have no such
power in relation to primary legislation, however. Indeed s3(2) (b) expressly provides that the section
does not affect the validity, continuing operation or enforcement of any incompatible primary
legislation. Further the section cannot be relied upon to invalidate incompatible subordinate legislation
if ‘(disregarding any possibility of revocation)’ primary legislation prevents removal of the
incompatibility: s 3(2) (c). Where an irreconcilable issue of compatibility arises before the HOL, the
Judicial Committee of the Privy Council, the Courts – Martial Appeal Court, or the High Court of the
Court of Appeal, that court will be empowered to grant a declaration of incompatibility. In relation to
subordinate legislation the power to make such declarations will arise provided (disregarding any
possibility of revocation) the primary legislation concerned prevents removal of the incompatibility.
Where such a declaration is made it does not affect the validity. Continuing operation or enforcement of
the provision in respect of which it is given, and is not binding on the parties to the proceedings in
which it is made:s4(6). Whilst the HRA does not provide for any new judicial remedies (other than the
declaration of incompatibility) a court finding that a public authority as acted unlawfully within the
terms of s6 may grant such relief or remedy, or make such order, within its powers as is considers just
and appropriate: s8(1)

Remedial action by ministers

Where a declaration of incompatibility has been made and rights of appeal have been exhausted,
abandoned or become time-barred, or it appears to a minister that ( in the light of a finding of the
ECtHR) a provision of legislation is incompatible with obligations under the Convention, a minister may,
if he considers that there are compelling reasons for so doing, make orders to amend the relevant
legislation to the extent that considers necessary to remove the incompatibility: see s 10(1) and
schedule 2.

Pre- enactment procedures

Section 19 of the 1998 Act places the relevant minister in charge of a Bill under a duty to make a
statement to the effect that in his view the provisions of the Bill are compatible with the Convention
rights, or to make a statement to the effect that although he is unable to make a statement of
compatibility the government nevertheless wishes the House to proceed with the Bill. Such statements
must be made before the second reading of a Bill, must be in writing and should be published in such
manner as the minister considers appropriate.

Rights Brought Home

The White Paper which preceded the Act, 'Rights Brought Home', proclaimed a new era in the
protection of the rights of everyone living in the country. In particular, it stated: "In this country it was
long believed that the rights and freedoms guaranteed by the Convention could be delivered under our
common law. In the last two decades, however, there has been a growing awareness that it is not
sufficient to rely on the common law and that incorporation is necessary" (Home Office 1997).

The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go
to ECtHR, in Strasbourg. The HRA gives every citizen a clear statement of rights and responsibilities and

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it requires ‘all of us in public services to respect human rights in everything we do" (Blair 1999: 1). This
was a statement made by the PM just a year before the introduction of the HRA.

In consequence, one of the principal objectives of the Act was to give national courts as much space as
possible to protect human rights, short of powers to set aside Acts of parliament. The Act did not take
away or restrict any existing human rights recognised in the country. On the contrary, it introduced the
minimum standards protected by the ECHR, leaving room for their development and expansion
according to citizens' particular circumstances. It also introduced a number of new rights such as the
ones relating to privacy, gay and transgender rights.

In particular, the Act makes it illegal for any public body to act in a way which is incompatible with the
Convention. It imposed direct negative and positive obligations on public authorities to behave within a
human rights framework. In the words of the then Home Secretary Jack Straw: "Over time, the Bill will
bring about the creation of a human rights culture in Britain. In future years historians may regard the
Bill as one of the most important measures of this Parliament" (Straw 21 October 1998). This meant that
the Act was going to reform public services so that both their quality and delivery is improved for UK
citizens. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret
legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not
possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges
are not allowed to override it. This declaration does not affect the validity of the Act of Parliament: in
that way, the Human Rights Act seeks to maintain the principle of Parliamentary Sovereignty.

ADVANTAGES OF HUMAN RIGHT ACT 1998

The Home Office, the Department that was then responsible for the application of the Act said as a
response: "The Human Rights Act is a cornerstone of our work to modernize the Constitution. It is one of
the most important pieces of constitutional legislation the UK has seen" (Straw, 18 May 1999).
There can be no doubt that the HRA has so far been successful in protecting most of the rights protected
in the ECHR Of course, this is not to suggest that a number of practical problems have not occasionally
arisen. The UK, for instance, is one of the few member states that has still not incorporated all the
articles included in the ECHR, while several reservations remain in place.

The HRA is a highly significant piece of legislation which combines into UK law the various rights and
freedoms contained within the ECHR and secure a wide range of civil rights and freedoms of the
individual against interference by the State. The result of this is that an individual is now able to seek
legal redress in a court in England or Wales. Yet under the Act, any UK citizen is now able to enforce
their rights in the domestic courts of England and Wales. A limitation occurs where UK law conflicts with
the Convention; in such circumstances, the individual will be obliged to make the application to
Strasbourg, as was required prior to the passing of the Act.

The Act applies to public authorities, along with those bodies carrying out public functions, and provides
that they must act in a manner which is compatible with the Convention . If an individual feels that this
Convention right has been breached by such a public authority, he may be entitled to challenge this by
the process of judicial review.

As declared heretofore, the Act has established the Convention as part of national law. The rights and
freedoms that it secures provide citizens with a range of positive entitlements to assert in the course of
a dispute with any public authority. Petitioners will not have to prove to the court that a disputed
decision was so irrational that no rational public authority could have taken it ; this is known as the
‘Wednesbury unreasonableness’ test. Provided that a litigant can show that he was personally affected

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by the action of decision of the public body, it is sufficient to simply establish a breach of a Treaty right
which, according to the court, was overstepped without lawful justification.

Any court or tribunal, in deciding a matter relating to a Resolution right, must take into consideration
previously established precedents, be they judgments, decisions, declarations and opinions made or
given by the European Commission and Court of Human Rights and the Committee of Ministers of the
Council of Europe. Hence, such precedents will be highly leading, though not binding, on national courts
in England and Wales.

One of the main aims of the Act has been to establish a culture of rights and freedoms arising from a
shared recognition of what are inherently right and wrong. A major change resulting from the passing of
this Act is that, whereas previously, a national court would only look to the Convention for guidance in
exceptional circumstances, it is now an onus of national courts to respect and secure for inhabitants the
rights established in the Treaty.

It is also to be hoped that, as an indirect result of the Act, an increased level of assurance by nationals in
public bodies and authorities will be seen. Such joint and established necessary values in relation to
human rights will be certain to promote a grander unity amongst society since such rights must,
henceforth, be a part of all policy making.

Criticism Of The Human Rights Act 1998

The HRA has aroused much criticism. The reaction of ministers and politicians more generally has been
heavily influenced by their unwillingness to challenge the biased and ill-informed portrayal by much of
the media. In such a charged political atmosphere, more nuanced criticisms are often drowned out.

In Professor Conor Gearty's paper Beyond the Human Rights, he feels that the HRA has been an easy
target for the mass-circulation media and is scornful of the media's approach which conflates ridiculous
and unsuccessful claims with actual decisions of the courts relating to the ACT. He thought the ECtHR
would be 'relaxed' if the UK repealed the HRA as the case law would then revert to the position in the
1990s. The main disadvantage for the court would be an increased workload, with more UK cases having
to be dealt with in Strasbourg rather being resolved by UK courts. Gearty argued that the incompatibility
procedure 'serves to buttress rather than undermine' parliamentary sovereignty as he thought its
absence would encourage a trend among some judges to consider striking down statutes which were
not compliant with the common law, rule of law and fundamental rights.

 from the conservative right

During the campaign for the 2005 parliamentary elections the Conservatives under Michael
Howard declared their intention to "overhaul or scrap" the HRA. According to him "the time had come
to liberate the nation from the avalanche of political correctness, costly litigation, feeble justice, and
culture of compensation running riot in Britain today and warning that the politically correct regime
ushered in by Labour's enthusiastic adoption of human rights legislation has turned the age-old principle
of fairness on its head"
He cited a number of examples of how, in his opinion, the HRA had failed: "the
schoolboy arsonist allowed back into the classroom because enforcing discipline apparently denied his
right to education; the convicted rapist given £4000 compensation because his second appeal was
delayed; the burglar given taxpayers' money to sue the man whose house he broke into; travellers who
thumb their nose at the law allowed to stay on green belt sites they have occupied in defiance of
planning laws".

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Public law

Some commentators have criticised Howard's claim that a prisoner serving a life sentence was allowed
to obtain hard-core pornography in prison. In R (on the application of Morton) v Governor of Long
Lartin Prison, a prisoner did indeed seek judicial review of a prison governor's decision to deny him
access to hard-core pornography claiming that the governor's policy was a breach of his Article 10 right
to freedom of expression; however, the prisoner was rejected leave to appeal.
The schoolboy referred to by Mr Howard was suing for compensation, not to be allowed back into the
classroom, since he was already a university student at the time of the court case. In addition, the claim
was rejected
 Left-wing criticism
In contrast, some have argued that the HRA does not give adequate protection to rights because of the
ability for the government to derogate from Convention rights under article 15 especially in relation to
terrorism legislation. Recent cases such as R (ProLife Alliance) v. BBC [2002] have been decided in
reference to common law rights rather than statutory rights leading to the possibility of judicial activism.
 Terrorism
Senior Labour politicians have criticised the HRA and the willingness of the judiciary to invoke
declarations on incompatibility against terrorism legislation. Former Home Secretary Dr John Reid
argued that the HRA was hampering the fight against global terrorism in regard to controversial control
orders:'' There is a very serious threat – and I am the first to admit that the means we have of fighting it
are so inadequate that we are fighting with one arm tied behind our backs. So I hope when we bring
forward proposals in the next few weeks that we will have a little less party politics and a little more
support for national security.''
In October 2014 the Conservative Party published controversial proposals for reform of the relationship
between the UK courts and the ECtHR: Protecting Human Rights in the UK, October 2014.This brief
document stated that if re-elected the Conservative Party proposed to break the formal link between
British courts and the ECtHR and that in future Britain’s courts would no longer be required to take into
account rulings from the Court in Strasbourg: ‘The UK Courts, not Strasbourg, will have the final say in
interpreting Convention Rights, as clarified by Parliament.’ They also proposed to change the effect of a
declaration of incompatibility so that such a ruling by the UK Supreme Court would be advisory only. It is
also suggested that the Government might leave the ECHR if it is not possible to achieve a ‘looser’
relationship with Strasbourg.
In a speech at UCL in December 2014 entitled ‘Why human rights should matter to Conservatives’, the
former Conservative Attorney General, Dominic Grieve QC, argued that opting out of the ECHR would
undermine respect for international human rights law and would have ‘potentially devastating’
consequences for the UK. In the General Election in May 2015 the Conservative Party was re-elected to
Government. Following the election the Prime Minister, David Cameron, announced that he intended to
repeal the Human Rights Act and replace it with a British Bill of Rights. This is likely to face considerable
opposition from politicians, the legal profession and human rights organisations. Whether or not any
changes are introduced, the Conservative Government proposals highlight the inherent tensions and
political interest in the relationship between the UK courts and the ECtHR.

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