The Human Rights Act 1998 (c. 42) is an act of the Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Convention on Human Rights. The act makes a remedy for breach of a Convention right available in UK courts, without the need to go to the European Court of Human Rights (ECHR) in Strasbourg.
In particular the act makes it unlawful for any public body to act in a way which is incompatible with the convention, unless the wording of any other primary legislation provides no other choice. It also requires the judiciary (including tribunals) to take account of any decisions, judgment or opinion of the European Court of Human Rights, and to interpret legislation, as far as possible, in a way which is compatible with Convention rights.
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 the act of Parliament. All they can do is issue a declaration of incompatibility. 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, pursuant to the Constitution of the United Kingdom. However, judges may strike down secondary legislation. Under the act, individuals retain the right to sue in the Strasbourg court.
Background The convention was drafted by the Council of Europe after World War II. Sir David Maxwell-Fyfe was the Chair of the Committee on Legal and Administrative Questions of the council's Consultative Assembly from 1949 to 1952, and oversaw the drafting of the European Convention on Human Rights. It was designed to incorporate a traditional civil liberties approach to securing "effective political democracy" from the strong traditions of freedom and liberty in the United Kingdom. As a founding member of the Council of Europe, the United Kingdom acceded to the European Convention on Human Rights in March 1951. However it was not until the 1960s that British citizens were able to bring claims in the European Court of Human Rights (ECtHR). During the 1980s, groups such as Charter 88, which invoked the 300th anniversary of the Glorious Revolution in 1688 and the Bill of Rights 1689, accused the executive of misusing its power and argued that a new British Bill of Rights was needed to secure human rights in the United Kingdom.
In its manifesto for the 1997 general election, the Labour Party pledged to incorporate the European Convention into domestic law. When the election resulted in a landslide Labour victory, the party, under the leadership of Tony Blair, fulfilled the pledge by the Parliament passing the Human Rights Act the following year.
The 1997 White Paper "Rights Brought Home"Home Office, "Rights Brought Home: The Human Rights Bill" (Cm 3782, 1997) para 1.14 stated:
It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.
Prior to the enactment of the Human Rights Act, individuals seeking to challenge public authority decisions on grounds such as discrimination had to rely on common law or specific statutes. In one case, Kelly Davis, a Black builder from Bath, brought a successful claim against the former Wansdyke District Council after being repeatedly denied planning permission between 1989 and 1991. In 2000, a judge at Bristol County Court found that the planning officers had acted in a “consistently unhelpful and obstructive fashion,” and concluded this treatment could only be explained by Davis being “the only Black builder in Wansdyke.” Wansdyke District Council was abolished in 1996, leaving its replacement, Bath and North East Somerset Council, to act as defendant in the case.
Structure The Human Rights Act places a duty on all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the European Convention on Human Rights (section 3(1)). If that is not possible, the court may issue a "declaration of incompatibility". The declaration does not invalidate the legislation but permits the amendment of the legislation by a special fast-track procedure under section 10 of the act as well. As of September 2006, 20 declarations had been made, of which six were overturned on appeal.
The Human Rights Act applies to all public bodies within the United Kingdom, including central government, local authorities, and bodies exercising public functions. However, it does not include Parliament when it is acting in its legislative capacities.
Section 3
Section 3 is a particularly wide provision that requires courts to interpret both primary and subordinate legislation so that their provisions are compatible with the articles of the European Convention on Human Rights which are also part of the Human Rights Act.Hoffman, Rowe (2006). p. 58. This interpretation goes far beyond normal statutory interpretation, and includes past and future legislation, therefore preventing the Human Rights Act from being impliedly repealed.Hoffman, Rowe (2008). p. 59. Courts have applied this through three forms of interpretation: "reading in", inserting words where there are none in a statute; "reading out", where words are omitted from a statute; and "reading down", where a particular meaning is chosen to be in compliance.Hoffman, Rowe (2006). pp. 60–61. They do not interpret a statute so as to give it a meaning that would conflict with legislative intent, and courts have been reluctant in particular to "read out" provisions for this reason. If it is not possible to so interpret, they may issue a declaration of incompatibility under section 4.Hoffman, Rowe (2006). pp. 60–62.
Section 3 does not apply to the Illegal Migration Act 2023.Illegal Migration Act 2023, section 1(5).
Sections 4 and 10
Sections 4 and 10 allow courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation to be compatible with the articles of the European Convention on Human Rights, which are also part of the Human Rights Act. In these cases, interpretation to comply may conflict with legislative intent.Hoffman, Rowe (2006). p. 60. It is considered a measure of last resort. A range of superior courts can issue a declaration of incompatibility.
A declaration of incompatibility is not binding on the parties to the proceedings in which it is made, nor can a declaration invalidate legislation.Hoffman, Rowe (2006). pp. 64.–65. Section 4 therefore achieves its aim through political rather than legal means.
Section 10 gives a government minister the power to make a "remedial order" in response to either a declaration of incompatibility, from which there is no possibility of appeal,Hoffman, Rowe (2006). pp. 65.–66. or a ruling of the European Court of Human Rights
A remedial order may "make such amendments to the legislation as [the Minister] considers necessary to remove the incompatibility".Human Rights act, section 10 Remedial orders do not require full legislative approval, but must be approved by resolutions of each House of Parliament. In especially urgent cases, Parliamentary approval may be retroactive.Human Rights Act, schedule 2, subsection 4
Remedial orders may have retroactive effect, but no one may be guilty of a criminal offence solely as the result of the retroactive effect of a remedial order.Human Rights Act, schedule 2, subsection 1, clause 4
Section 10 has been used to make small adjustments to bring legislation into line with Convention rights although entirely new pieces of legislation are sometimes necessary.Hoffman, Rowe (2006). p. 66.
As of December 2014, 29 declarations of incompatibility have been issued, of which 8 have been struck down on appeal 1 is pending appeal, as of December 2014 16 have been remedied through the ordinary legislative process (including amendment or repeal of the offending legislation). 3 have been addressed through remedial orders 1 has not been remedied.
The one case not to have been remedied, as of December 2014, is Smith v. Scott, concerning the right of serving prisoners to vote in the UK.
Sections 6 to 9 Although the act, by its own terms, applies only to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect (as in disputes between citizens) as well as vertical effect (as in disputes between the state and citizens). This is because section 6(3) of the Human Rights Act defines courts and tribunals as public bodies. That means their judgments must comply with human rights obligations of the state, whether a dispute is between the state and citizens, or between citizens, except in cases of declarations of incompatibility. Therefore, judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens.
The way that public duty is exercised in private law was dealt with in a June 2016 decision McDonald v McDonald & Ors UKSC 28 (15 June 2016) where the UK Supreme Court firstly considered the question "... whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights"
The Supreme Court decided (paragraph 46) that "there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article 10. But such disputes arise not from contractual arrangements made between two private parties, but tortious or quasi-tortious relationships, where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out the balancing exercise".
Therefore, In cases "where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected" then the Court decided, as set out in paragraph 59 "In these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession against her, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts. Accordingly, for the reasons set out in paras 40–46 above, we would dismiss this appeal on the first issue."
Paragraph 40 supposed that "... it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants."
The duty of state judges to apply Convention rights to disputes between citizens is therefore about determining relationships between them, and applying domestic legislation accordingly. If the duty is carried out then it is likely there is Article 6 compliance.