Human Rights Act 1998 — introduction

The Human Rights Act 1998 brought most of the European Convention on Human Rights into domestic law. Before October 2000 (when the Act came into force), an individual claiming that the United Kingdom had violated Convention rights had to litigate in the European Court of Human Rights in Strasbourg — a slow, expensive process whose remedies were, in any case, declaratory. After 2000, the same claim could be brought in domestic courts and could deliver domestic remedies: damages, declarations of incompatibility, judicial review of public-authority decisions.

This week introduces the architecture of the HRA. Three sections do most of the doctrinal work. Section 3 requires courts to read primary and secondary legislation compatibly with Convention rights ''so far as it is possible to do so''. Section 4 permits the higher courts to issue a declaration of incompatibility where a compatible reading is not possible — but the declaration does not invalidate the legislation. Section 6 makes it unlawful for a public authority to act in a way that is incompatible with Convention rights. Together these provisions create what Lord Steyn called ''the new legal order'' — domestic enforcement of Convention rights with continued respect for parliamentary sovereignty.

The topic connects to W2 (sovereignty — the HRA''s preservation of Parliament''s ultimate authority through the s 4 mechanism), W3 (rule of law — the legal principle of which Convention rights are partial expression), W5 (separation of powers — the boundary between courts and Parliament that s 3 / s 4 polices), and W7 (EU law — the analogous question of how a higher legal order is integrated into a Diceyan system).

The European Convention on Human Rights was drafted by the newly-formed Council of Europe in 1949–50, signed in Rome in November 1950, and ratified by the United Kingdom in 1951. The UK was a founder member, and British lawyers (notably Sir David Maxwell-Fyfe) were among the principal drafters. From 1966, the UK accepted the right of individual petition to the Strasbourg Court.

For fifty years, the Convention applied to the UK only in international law. UK courts could refer to the Convention as a guide to interpretation (Salomon v Commissioners of Customs and Excise [1967] 2 QB 116; AG v BBC [1981] AC 303), but they could not enforce Convention rights against domestic statute. The political consequence was the long stream of UK losses in Strasbourg — Sunday Times v UK (No 1) (1979); Malone v UK (1985); Soering v UK (1989); Tyrer v UK (1978) — and the political pressure that built up for domestic incorporation.

The 1997 Labour Government''s manifesto committed to incorporation. The White Paper Rights Brought Home (Cm 3782, October 1997) outlined the framework that became the Human Rights Act 1998: incorporation of the substantive Convention rights, an interpretive obligation, a non-invalidating declaration mechanism, a duty on public authorities, and damages remedies for unlawful acts. The Bill was introduced in November 1997, received Royal Assent in November 1998, and came fully into force on 2 October 2000.

The post-2000 period has produced an extensive case-law working out the implications of the architecture. The principal phases: (i) 2000–05, doctrinal foundations (Ghaidan, Bellinger, Wilson); (ii) 2005–15, intensive engagement with substantive rights (Article 6 — Ahmed, AF; Article 8 — Naik, Re S; Article 5 — terror-detention cases); (iii) 2015–24, contested political reception and proposals for HRA reform (the Bill of Rights Bill 2022, withdrawn); (iv) 2024 onwards, post-election retention of the HRA in its current form.

Three principles structure the HRA''s operation.

(1) The interpretive obligation (s 3). Section 3(1) requires that ''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.'' The phrase ''so far as it is possible'' has been the subject of intensive judicial interpretation. Ghaidan v Godin-Mendoza [2004] UKHL 30 held that s 3 requires the court to depart from the apparent literal meaning of legislation if a Convention-compatible reading is linguistically possible — even where this involves reading words into statute or reading them differently from their natural meaning. The limits are that the reading must not (a) ''go against the grain'' of the legislation (Lord Nicholls at [33]) or (b) require the court to make decisions for which it is not equipped.

Five graded practice questions are provided below — two foundation questions on the s 3 / s 4 architecture and on s 6 public authorities, two standard questions on Ghaidan and Bellinger, and one challenge question on the HRA-ECHR relationship and reform proposals.

See the Further Reading panel for the canonical sources: Bingham, Hickman, Klug, the IHRA Review, the leading case-law from Ghaidan to Belmarsh, and the post-2020 academic commentary.