The Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporated the rights contained in the European Convention on Human Rights (ECHR) into domestic UK law, taking effect on 2 October 2000. The Act does not make the Convention supreme law — Parliament retains sovereignty — but it creates a sophisticated mechanism for protecting Convention rights within the existing constitutional framework.

The "Convention rights" incorporated are set out in Schedule 1 to the HRA and include: the right to life (Art.2); prohibition of torture (Art.3); right to liberty (Art.5); right to a fair trial (Art.6); right to respect for private and family life (Art.8); freedom of thought, conscience and religion (Art.9); freedom of expression (Art.10); freedom of assembly (Art.11); right to marry (Art.12); and prohibition of discrimination (Art.14).

Under s.2 HRA, UK courts must "take into account" Strasbourg jurisprudence when determining questions arising in connection with Convention rights. This does not require courts to follow Strasbourg decisions, but they should not "without good reason" depart from clear and constant Strasbourg case law (R (Ullah) v Special Adjudicator [2004] UKHL 26).

Section 3(1) requires that, "so far as it is possible to do so," primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights. This is a strong interpretive obligation that goes beyond ordinary statutory interpretation.

In Ghaidan v Godin-Mendoza [2004] UKHL 30, the House of Lords used s.3 to read the Rent Act 1977 as extending succession rights to same-sex partners, interpreting "as his or her wife or husband" to include same-sex cohabitants. Lord Steyn stated that s.3 may require the court to depart from the unambiguous meaning of legislation.

However, s.3 has limits. It cannot be used to adopt a meaning inconsistent with a fundamental feature of the legislation (Re S (Minors) [2002] UKHL 10). In R v A (No 2) [2001] UKHL 25, Lord Hope cautioned that s.3 does not entitle judges to act as legislators — the boundary between interpretation and amendment must be respected.

Where s.3 cannot achieve compatibility, the court must apply the legislation as it stands and may consider making a declaration of incompatibility under s.4.

Under s.4 HRA, certain higher courts (High Court and above) may make a declaration of incompatibility where primary legislation is incompatible with Convention rights and cannot be read compatibly under s.3. A declaration does not affect the validity, continuing operation, or enforcement of the provision (s.4(6)) — the legislation remains in force.

A declaration is a signal to Parliament that the law needs changing. Under s.10, a Minister may use a "remedial order" (a form of secondary legislation) to amend the incompatible provision, though there is no legal obligation to do so.

Notable declarations include Bellinger v Bellinger [2003] UKHL 21 (inability of transsexual persons to marry in their acquired gender under the Matrimonial Causes Act 1973) and A v Secretary of State for the Home Department [2004] UKHL 56 (indefinite detention of foreign terrorist suspects under the Anti-Terrorism Act 2001).

Section 6(1) makes it unlawful for a public authority to act in a way which is incompatible with Convention rights. This creates a direct cause of action: a victim of an unlawful act may bring proceedings against the authority (s.7).

"Public authority" includes: (a) core public authorities (government departments, local authorities, police, NHS trusts) which are bound by Convention rights in everything they do; and (b) hybrid public authorities (bodies exercising functions of a public nature) which are bound only in respect of their public functions (s.6(3)(b)).

In YL v Birmingham City Council [2007] UKHL 27, the House of Lords controversially held that a private care home providing accommodation under a contract with a local authority was not exercising a public function. This was reversed by s.145 Health and Social Care Act 2008 for care home providers.

The horizontal effect of the HRA — whether Convention rights apply between private parties — is indirect. Courts, as public authorities under s.6, must develop the common law consistently with Convention rights (Campbell v MGN [2004] UKHL 22).

Many Convention rights are qualified (Arts.8-11), meaning they may be restricted where the interference is: (1) prescribed by law; (2) in pursuit of a legitimate aim; and (3) necessary in a democratic society (proportionate). The proportionality test requires the court to assess whether the interference corresponds to a pressing social need and is proportionate to the legitimate aim pursued.

In Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, Lord Reed articulated a four-stage proportionality test: (1) is the objective sufficiently important? (2) is the measure rationally connected to the objective? (3) could a less intrusive measure have been used? (4) has a fair balance been struck between the rights of the individual and the interests of the community?

The margin of appreciation (a Strasbourg concept allowing states discretion) has a domestic analogue in the concept of deference or "discretionary area of judgment" — courts afford greater latitude to the executive and legislature on matters of policy, national security, and resource allocation.