Human Rights Act 1998: Core Mechanisms
Key Sections
| Section | Rule | |---|---| | s.2 | Courts must take into account Strasbourg jurisprudence (not strictly bound) | | s.3 | Legislation must be read and given effect, so far as possible, compatibly with Convention rights | | s.4 | If s.3 reading is impossible, court may make a Declaration of Incompatibility | | s.6 | Unlawful for a public authority to act incompatibly with Convention rights | | s.7 | Only a victim (person directly affected) may bring a s.6 claim | | s.8 | Court may grant such relief as is just and appropriate, including damages | | s.19 | Minister must make a compatibility statement or state that Parliament wishes to proceed anyway |
Section 3 vs Section 4
- s.3 is a strong interpretive obligation — courts must strain to find a compatible reading: R v A (No 2) [2001] UKHL 25 (reading in words to s.66 Youth Justice and Criminal Evidence Act 1999).
- If no compatible reading exists, the court issues a s.4 Declaration of Incompatibility — this does not affect the validity of the Act or the parties' rights; it signals to Parliament to amend.
- Key s.4 example: A v Secretary of State for the Home Department [2004] UKHL 56 — indefinite detention of foreign nationals under Anti-Terrorism, Crime and Security Act 2001 declared incompatible with Arts 5 and 14 ECHR.
Public Authorities (s.6)
- Core public authorities (government departments, police): fully bound.
- Hybrid/functional public authorities: bound only when exercising a public function.
- Private bodies acting in purely private capacity: not bound.
Convention Rights Incorporated
Articles 2–12 and 14 ECHR, together with Protocol 1 Articles 1–3, are incorporated via Schedule 1 HRA 1998.
Common Exam Traps
- s.4 declarations do not strike down legislation — Parliament remains sovereign.
- s.2 says take into account, not follow; domestic courts may depart from Strasbourg where there are good reasons.
- Standing under s.7 is narrower than judicial review standing — must be a victim.
Exam tip: The difference between s.3 and s.4 is the single most-tested HRA distinction — know which courts can make each (all courts can apply s.3; only higher courts listed in s.4(5) can make declarations).