Out-Law Guide 5 min. read
15 Nov 2023, 11:34 am
The Human Rights Act 1998 incorporates rights contained in the European Convention on Human Rights (ECHR) into UK national law. This means that they can be used to challenge the actions and decisions of governments and public bodies in the UK courts.
The ECHR is an international treaty, signed by the UK and 45 other European nations – including EU members and non-EU members. It is binding on the UK state in international law.
The ECHR was drafted in the aftermath of the Second World War and first signed in 1950. The rights and principles enshrined in it are framed at a high level of generality, which has allowed them to be interpreted and developed through case law to apply in a range of contexts reflecting developments in society since then. For example, there is no mention of personal data in the ECHR, but it has become well established that the Article 8 right to private and family life extends to protecting an individual’s personal data.
The ECHR is separate from the European Union (EU). It is governed by a distinct apparatus and enforcement framework which is not tied into the EU’s legal framework. Accordingly, the UK’s Brexit divorce from the EU’s legal framework had no bearing on the fact that the UK remains a party signed up to the ECHR.
The ECHR is governed by a distinct apparatus and enforcement framework which is not tied into the EU’s legal framework
The ECHR rights that apply in UK national law under the Human Rights Act are:
Some ECHR rights are known as ‘absolute rights’, such as the Article 2 right to life. This means that any state interference with that right is a breach of the ECHR. However, most ECHR rights are ‘qualified rights’. This means that a state is permitted to restrict a right such as the right to protest, provided for in Articles 10 and 11, in some circumstances, provided that the restriction is justified and proportionate.
Most ECHR rights are ‘qualified rights’. This means that a state is permitted to restrict a right such as the right to protest in some circumstances, provided that the restriction is justified and proportionate
In general, the ECHR rights are only available to protect the rights of individuals – not the rights of organisations, businesses or public bodies. However, the courts have been prepared to accept that some of the rights are available to protect businesses or other organisations in certain circumstances.
Under section 6 of the Act, it is unlawful for a UK public body to breach the ECHR rights. Section 6 does not impose obligations on others to protect human rights. This focus on the actions of public bodies means that claims under the Human Rights Act are frequently raised in defences to criminal prosecution proceedings, or brought in judicial review proceedings against public bodies. For example, the AAA case heard by the Supreme Court in 2023 was a judicial review of the UK government’s policy of transferring asylum seekers to Rwanda, found to be in breach of Article 3 ECHR.
Section 3 of the Human Rights Act goes further in that it requires UK courts to interpret and apply national legislation consistently with ECHR rights. This means that, insofar as it is possible to do so, the courts must apply legislation on a wide range of matters in a way that gives effect to relevant human rights.
For example, in the 2004 case of Ghaidan, the House of Lords, whose judicial functions are now performed by the Supreme Court, used Article 14 ECHR to interpret the provisions of the Rent Act 1977 on protected housing tenancies in a non-discriminatory way. As a result, where the Act stated that a husband or wife could succeed to the tenancy on the death of the tenant, this was read as also including a same-sex partner of the deceased tenant.
Where a consistent interpretation is not possible under section 3, national legislation can be challenged in courts on the grounds that it is inconsistent with ECHR rights. Courts have the power under section 6 of the Human Rights Act to strike down or disapply secondary legislation, such as regulations made by a UK minister. For example, in the RR case in 2019, the Supreme Court disapplied provisions of the Housing Benefit Regulations 2006 – known as the ‘bedroom tax’ – considered discriminatory in breach of Article 14 ECHR, so that benefits would be paid in respect of a spare bedroom where there was a medical need for an additional bedroom.
Courts have the power under section 6 of the Human Rights Act to strike down or disapply secondary legislation, such as regulations made by a UK minister
It is also a common feature of the devolution settlements contained in the Scotland Act 1998, Northern Ireland Act 1998 and Government of Wales Act 2006 that all devolved legislation must be consistent with ECHR rights. Courts have powers to strike down devolved legislation that breaches ECHR rights. For example, in the AB case in 2017, the Supreme Court found that an Act of the Scottish Parliament restricting the defences available to a sex offender facing prosecution was in breach of Article 8 ECHR.
An Act of parliament – that is, the UK parliament at Westminster – can also be challenged in the courts on the grounds that it is inconsistent with an ECHR right, but the courts have no power to disapply it or strike it down. Instead, if a court finds a breach of an ECHR right, it may make a declaration of incompatibility under section 4 of the Human Rights Act.
For example, in 2007, the Registration Appeal Court in Scotland issued a declaration of incompatibility in the Smith case in respect of the Representation of the People Act 1983, which restricted the right of prisoners to vote in elections, in breach of Article 3, Protocol 1 ECHR.
An Act of parliament can be challenged in the courts on the grounds that it is inconsistent with an ECHR right, but the courts have no power to disapply it or strike it down
When claims are brought in the UK courts under the Human Rights Act, section 2 requires the courts to take account of the case law of the European Court of Human Rights (European court), as it is the court that provides the authoritative interpretation of ECHR rights across all states that are party to the ECHR. Like with the ECHR itself, the European court is not affiliated with the EU – it is distinct from the EU court system.
UK courts have described section 2 as a duty to ‘keep pace’ with the European court’s case law, but not to go further by interpreting and developing ECHR rights in ways not yet affirmed by the European court.
For example, in the Friends of the Earth judicial review of the UK government’s net zero strategy in 2022, the High Court decided that Articles 2 and 8 ECHR could not be interpreted as offering protection from the future effects of climate change, because there was no confirmation of that interpretation in the European court’s case law at that time.
It is a core principle of the European court that, in general, it will only accept a case for consideration if the applicant has first gone through their national court system to seek a remedy. This means that most human rights breaches are resolved by a national court giving judgment, without the need for a case to be taken to the European court. In effect, the cases taken to the European court are a form of ‘appeal’, where the national courts have not found in the applicant’s favour.
In contrast to a claim under the Human Rights Act, a UK case taken to the European court is always a claim against the UK state as a whole, represented by the UK government, rather than any particular public body in the UK. The claim is not only about the acts of any given public body, but also about the fact that national laws and national courts did not prevent those acts.
In national law, it is possible in principle for legislation to be made that modifies ECHR rights. However, such legislation may be challenged in the courts, as described above, if it is incompatible with ECHR rights.
Given that a court will, where possible, seek to interpret an Act of parliament consistently with ECHR rights (see above), an Act that modifies ECHR rights would require express wording showing a clear intention to restrict ECHR rights in order to have that effect. If that were the case, a UK court could not strike down or disapply the Act of parliament – it could only make a declaration of incompatibility under section 4 of the Human Rights Act.
Equally, as the Human Rights Act is an Act of parliament, it could be amended or repealed by another Act of parliament. In 2022, the UK government put forward a Bill of Rights Bill which would have repealed and replaced the Human Rights Act, giving effect to ECHR rights in the UK in a more restrictive and complex way. The Bill was highly controversial, and in 2023 the government announced that it would not pursue it further.
If an Act of parliament were passed that restricted ECHR rights, and UK courts were unable to strike it down, then a claim could be made against the UK in respect of that legislation in the European court. Whilst such an Act of parliament might be lawful in the UK’s national law, it would be a breach of the UK’s ECHR obligations in international law.
For example, in Hirst (No.2) in 2005, the European court found the UK in breach of the ECHR, due to the Act of parliament restricting prisoners’ voting rights. The Act had been upheld by the UK courts as lawful in national law prior to that judgment, though they subsequently followed the European court’s ruling and issued a declaration of incompatibility in respect of it (see above).
08 Nov 2022