How the Human Rights Act works

What does the Human Rights Act do for us?

The Human Rights Act incorporates the rights contained in the European Convention on Human Rights into UK law.

The ‘Articles’ in the Human Rights Act each protect a specific right or freedom – all of which apply to everyone in this country.

The Act makes sure our fundamental rights form part of UK law in three ways:

• All UK law must be interpreted, as far as possible, in a way that complies with the Human Rights Act.
• If an Act of Parliament breaches these rights, the courts can declare the legislation incompatible. This does not make the law invalid – it remains up to Parliament to decide whether or not to change it.
• It is unlawful for any public authority to act in a way that breaches our human rights (unless a statutory duty enables them to act in that way) – and anyone whose rights have been violated can legally challenge that authority.

The Human Rights Act is not the same as – for example – the US Bill of Rights or the German Basic Law, which entrench rights and let courts strike down incompatible legislation.

Instead, it preserves the long-held principle of parliamentary sovereignty – Parliament alone can decide whether or not to repeal or amend legislation.

How do UK courts use the Human Rights Act?

The Human Rights Act adopts a ‘dialogue model’ – meaning the courts have been invited by Parliament to indicate when legislation is incompatible with our rights.

Ultimately, Parliament decides if – and how – it will respond.

When interpreting questions about human rights, courts must ‘take into account’ any decisions made by the European Court of Human Rights – but only to the extent that they consider them to be relevant.

This does not bind UK courts, but requires them to take into account relevant judgments – much like they do under common law rules of statutory interpretation.

Section 3 of the Human Rights Act and compatibility

Section 3 of the Human Rights Act requires anyone interpreting our laws to do so in a way that is compatible with human rights – whether they are a court, tribunal or public authority acting.

This applies to all legislation – including laws passed before the Human Rights Act came into force.

Importantly, Section 3 includes the caveat that laws must be interpreted in a way that is compatible with human rights only “so far as it is possible to do so”.

It doesn’t give the courts power to make new laws, as any interpretation must be consistent with existing law.

Section 3(2) of the Human Rights Act says this interpretative power does not affect the validity, operation or enforcement of any Act of Parliament.

If an Act of Parliament requires secondary legislation to be made that doesn’t comply with our rights, that secondary legislation will not be affected by Section 3.

However, if the secondary legislation could have been drafted differently and could have complied with human rights, the courts can it strike down.

This is because secondary legislation does not have the same status as primary legislation, which has been fully considered by Parliament.

Section 4 and declarations of incompatibility

Section 4 of the Human Rights Act says that if a higher court (such as the High Court, Court of Appeal or Supreme Court) considers that part of an Act of Parliament is incompatible with human rights, it can make a declaration of incompatibility.

This declaration of incompatibility does not affect the validity, operation or enforcement of the law.

Instead, Parliament must decide whether it wishes to amend the law.

In the first 10 years of the Human Rights Act being in force, fewer than 30 declarations of incompatibility were made.

How does Parliament use the Human Rights Act?

Under the Human Rights Act, Parliament has a significant role to play in upholding and promoting fundamental rights and freedoms.

Statements of compatibility

Section 19 of the Human Rights Act requires any minister in charge of a Bill in both Houses of Parliament to lay a statement before Bill’s second reading saying that:

• In the minister’s view, the Bill is either compatible with human rights
• Or that it is incompatible, but that the Government nevertheless wishes to proceed with it.

This statement doesn’t bind Parliament or the courts. It is intended to encourage ministers and the civil service to consider the human rights implications of proposed legislation before it is introduced.

The statement of compatibility can often trigger debate in Parliament about the compatibility of draft laws.

Explanatory notes (which accompany Bills) also now include detailed information explaining why the legislation is considered to be compatible with human rights.

This detailed policy justification for proposed measures helps to inform parliamentary debate.

Joint Committee on Human Rights

The Joint Committee on Human Rights is a parliamentary committee consisting of 12 members appointed from both the House of Commons and the House of Lords.

The Committee’s task is to consider human rights issues in the UK, by scrutinising draft legislation and considering its compatibility with human rights.

It also carries out inquiries on issues relating to human rights and makes recommendations to Parliament.

The Committee also looks at the Government’s response to human rights judgments and scrutinises any remedial orders – which are used to amend legislation in response to these judgments.

The Committee plays an extremely important role in ensuring greater transparency in government decision-making. Its reports and expertise are often cited in parliamentary debates – and its work ensures Parliament has an informed voice on human rights that is independent of the Government.

Remedial orders

If a court has found UK legislation incompatible with human rights, it is up to Parliament to decide whether to amend it.

Section 10 and Schedule 2 of the Human Rights Act allow amendments to be made by a remedial order. If a minister thinks there are strong reasons to do so, they can make an order to amend legislation – to remove an incompatibility recognised by the courts.

A draft of the order must be laid before Parliament for 60 days and then approved by both Houses before it can be made.

The only exception is for urgent orders, which allow for an interim order to be made. This will have no effect if not approved by both Houses within 120 parliamentary days.

This is intended to ensure that clear breaches of human rights can be dealt with swiftly, rather than waiting for a legislative slot which can often take months, if not years.

How do public authorities use the Human Rights Act?

Section 6 of the Human Rights Act says it is unlawful for a public authority to breach our rights.

This duty ensures all decisions and actions they take properly take into account our rights and freedoms.

This obligation does not apply if, under the law, the public authority could not have acted differently.

What is a public authority?

A public authority includes a court or tribunal and any person whose functions are of a public nature. This includes:

• Police officers
• Local authorities
• Government departments
• Statutory bodies (for example the Information Commissioner’s Office, the National Crime Agency and the Office of Fair Trading)
• Prison managers and staff
• Some private bodies in certain circumstances, if contracted to carry out work on behalf of a public authority – for example, if publicly funded to perform work generally carried out by the Government (for example, privately run prisons).
• Nursing and personal care accommodation providers.

What is not a public authority?

• Parliament and anyone exercising a function in connection with proceedings in Parliament (such as MPs and peers in Parliament).
• Anyone acting in a private capacity (such as a police officer in his or her private life).
• A private company not exercising functions of a public nature – a private company that receives no public funding and is under no statutory obligation to perform its functions.

Remedies for breach by a public authority

If a public authority is found to have breached human rights the court can:

• Grant traditional ‘judicial review’ relief – which reviews the lawfulness of a decision by a public authority. If the court concludes that a decision is unlawful it can, among other things:
  • declare that the public authority acted unlawfully
  • cancel the decision, or
  • prevent a public authority from acting in a certain way. In most situations, if a decision is found to be unlawful, the court will send the the issue back to the public authority to make the decision again.
• Award compensation to the extent the court considers it necessary, just and appropriate. The courts often take into account the conduct of the person seeking compensation when deciding whether to grant it.

This is in addition to the courts’ power to make a declaration that the law (rather than the decision made under the law) is in breach of human rights.