Human Rights Act 1998 — introduction

The Human Rights Act 1998 incorporates most European Convention rights into domestic law through three mechanisms: s 3 (courts must interpret legislation compatibly with Convention rights 'so far as it is possible to do so'), s 4 (higher courts may declare legislation incompatible without invalidating it), and s 6 (public authorities must act compatibly with Convention rights). This creates what Lord Steyn called 'the new legal order' — domestic enforcement of Convention rights while preserving parliamentary sovereignty through the non-invalidating declaration mechanism. The rationale is bringing rights home: before 2000, UK citizens had to litigate in Strasbourg; after 2000, they could vindicate Convention rights in domestic courts with domestic remedies.

Ghaidan v Godin-Mendoza [2004] UKHL 30: Section 3 requires courts to depart from literal meaning if Convention-compatible reading is linguistically possible, unless this goes 'against the grain' of legislation or requires policy decisions beyond judicial competence. Central because it defines the outer limits of interpretive obligation.

Bellinger v Bellinger [2003] UKHL 21: Court could not read gender-recognition provisions compatibly with Articles 8/12 as this required complex policy judgments; declaration of incompatibility issued instead. Shows when s 3 yields to s 4.

A v SSHD (Belmarsh) [2004] UKHL 56: Indefinite detention of foreign nationals breached Articles 5/14; declaration issued. Lord Hoffmann: real threat to nation comes 'not from terrorism but from laws such as these' — demonstrates HRA as constraint on emergency powers.

YL v Birmingham City Council [2007] UKHL 27: Private care home under local authority contract not 'public authority' under s 6(3)(b) (3-2). Narrowed HRA's application to private contractors performing public functions.

R (Ullah) v Special Adjudicator [2004] UKHL 26: Courts should keep pace with Strasbourg jurisprudence — 'no more, no less'. Establishes relationship between domestic courts and ECtHR under s 2.

Courts face any statute potentially engaging Convention rights and follow this sequence: (1) Identify the engaged Convention right and relevant Strasbourg jurisprudence (s 2 — Ullah principle). (2) Attempt Convention-compatible interpretation under s 3 — can depart from literal meaning but not go against legislative grain (Ghaidan test). (3) If compatible reading impossible without exceeding Ghaidan limits, consider declaration of incompatibility under s 4 (High Court and above only). (4) For public authority acts, apply s 6 directly — unlawful to act incompatibly unless required by primary legislation. Common triggers: criminal procedure (Article 6), family/immigration decisions (Article 8), detention (Article 5), discrimination in statutory schemes (Article 14). Proportionality analysis pervades all stages.

Students wrongly assume s 4 declarations invalidate legislation — they don't (s 4(6) explicit). Treating s 3 as unlimited interpretive power ignores Ghaidan's 'grain' test and institutional limits. Conflating HRA with ECHR misses that Articles 1 and 13 aren't incorporated. Assuming HRA has no horizontal effect ignores that s 3 applies to all legislation including private-law statutes, and courts as public authorities must decide private cases compatibly. Missing that s 2 requires only 'taking account' of Strasbourg, not slavish following — though Ullah establishes 'no more, no less' as starting point.