Human Rights Act 1998 & ECHR

LS.08 — Human Rights Act 1998 & ECHR

Core scheme. The HRA 1998 gives "further effect" to most ECHR rights (the "Convention rights" in Sch 1) in domestic law. The UK is dualist, so the Convention itself isn't directly enforceable — the HRA is the gateway.

Key provisions (memorise the section numbers):

• s.2 — courts must take into account (not follow) Strasbourg jurisprudence. Domestic precedent still binds; this is the "mirror principle" with room to depart.
• s.3 — legislation must be read and given effect so far as possible compatibly with Convention rights. A strong interpretive duty (can read words in/out — Ghaidan v Godin-Mendoza) but cannot go "against the grain" of the statute.
• s.4 — if compatible reading is impossible, higher courts may issue a declaration of incompatibility. This does not strike down or invalidate the legislation, does not bind the parties, and the provision keeps operating — Parliamentary sovereignty is preserved. It may trigger a s.10 remedial order.
• s.6 — unlawful for a public authority to act incompatibly with Convention rights. "Public authority" includes courts and hybrid/functional bodies (private bodies exercising public functions — YL v Birmingham CC), but not Parliament. Exception: where primary legislation compels the breach.
• s.7 — only a "victim" may bring a claim (narrower than judicial review standing).
• s.8 — courts may grant any just remedy, including damages, but damages are a last resort and modest.

Categories of rights. Absolute (Art 3 — no torture/inhuman treatment; cannot be limited). Limited (e.g. Art 5 liberty). Qualified (Arts 8–11 — privacy, religion, expression, assembly) — interference must be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society (proportionate).

Common traps:

• A declaration of incompatibility does not invalidate the statute — distinguish sharply from EU/assimilated-law disapplication.
• s.2 = "take into account," not "bound by" Strasbourg.
• Standing under the HRA is the victim test, not the JR "sufficient interest" test.
• s.3 (interpret) comes before s.4 (declare) — declaration is a fallback only.
• Convention rights bind public authorities, not purely private parties (though horizontal effect seeps in via courts as public authorities).
• The ECHR derives from the Council of Europe / Strasbourg — nothing to do with the EU, and unaffected by Brexit/REUL.

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