The situation before the Human Rights Act 1998:
The Convention was in force, so far as international law was concerned, from 1951. A considerable number of cases against the U.K. arose prior to the Human Rights Act 1998 and, in many of those cases, the European Court found against the U.K. This necessitated changes to the law which were usually effected by legislation. A good example is the case of Malone v U.K. (1984) 7 EHRR 14 which concerned interception of communications. The finding against the U.K. led to the Interception of Communications Act 1985 which is now replaced by the Regulation of Investigatory Powers Act 2000 (or “RIPA”).
In a number of cases in U.K. courts points were raised regarding the convention and this had an effect on the outcome of some of those cases. An example here is Derbyshire County Council v Times Newspapers Ltd  QB 770, Article 10 (Freedom of Expression) was persuasive in the House of Lords decision that a local authority could not sue in libel.
Background to the Human Rights Act 1998:
For many years, a number of reasons were advanced for not giving full effect within the U.K. to the Convention. These included the risks of: damaging the doctrine of parliamentary sovereignty; judges gaining too much power; difficult questions being decided by judges rather than by elected politicians. Many argued that the rights were already adequately protected by the common law though, in reality, this was never a very sound argument since common law rights were often ill-defined and could be altered or removed by legislation.
There were a number of attempts to either enact a British Bill of Rights or to incorporate convention rights in some way. Notable among these was: Democracy and Individual Rights 1968 (Anthony Lester – now Lord Lester of Herne Hill QC); Lord Scarman “English Law – The New Dimension) in 1974; Charter of Human Rights (Labour Party 1975) etc. However, in December 1996, Jack Straw M.P. and Paul Boateng M.P. published a paper “Bringing Rights Home”. In May 1997, the Labour won the election on a manifesto which included incorporating the convention into domestic law. The outcome was the Human Rights Act 1998.
The Human Rights Act 1998 – (HRA 98):
a) Convention Rights …
The HRA 98 begins by defining, for the purposes of the Act, the term “convention rights” – s.1(1). “Convention rights” as so defined “are to have effect for the purposes of this Act subject to any designated derogation or reservation …” – s.1(2). The Lord Chancellor may by Order make such amendments to the Act as he considers appropriate to reflect the effect, in relation to the United Kingdom, of a protocol – s.1(3). A number of such “Orders” have been made as additional protocols have come into force.
b) Reading and Interpreting legislation …
The HRA 98 s.3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with “Convention rights” – (as defined in s.1). This applies to legislation whenever enacted. However, it is important to note s.3(2)(b) which states that section 3 does not affect the validity, continuing operation or enforcement of any incompatible primary legislation. Hence, if it proves impossible to read such legislation in a compatible way then it still continues in force. [Section 3(2)(c) has a similar provision for subordinate legislation. The validity etc. of the latter may be affected unless primary legislation prevents removal of the incompatibility].
c) Declaration of Incompatibility …
If a court is satisfied that a provision in primary legislation is incompatible with a Convention right then the court may make a declaration of that incompatibility – s.4(1) and 4(2). [There is similar provision for subordinate legislation – s.4(3) and 4(4)]. The word “court” is defined in s4(5) and is limited to certain higher courts only – basically High Court or above. Again, under s4(6), it is enacted that a declaration of incompatibility does not affect the validity etc. of a provision and is not binding on the parties to the proceedings in which it is made.
The processes used by the courts to determine whether there is incompatibility and whether to make a declaration are considered below.
d) Remedial action …
A declaration of incompatibility will trigger the possibility of “remedial action” being taken by the government to correct the incompatibility. There is a power to take remedial action – see s.10 – and this includes a “fast track” legislative process where the Minister considers that there are “compelling reasons” for doing so.
The mechanism of “declaration of incompatibility” preserved the doctrine of the Supremacy of Parliament in that, when such a declaration is issued, it remains a matter for the executive and the legislature to decide whether to correct the incompatibility and, if so, how. Thus, there is no power under the HRA 98, for courts to “strike down” or “rule as unconstitutional” any legislation.
e) Public authorities …
s.6 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right. However, s6(2) should be noted. It will not be unlawful for a public authority to act incompatibly if, due to legislation, the authority could not have acted differently. The term “public authority” receives minimal definition – see s.6 (3) – but “either House of Parliament” is expressly stated NOT to be a public authority. There have been a number of cases where the courts have had to decide whether some body is acting as “public authority”. These are not considered further here.
f) Proceedings …
Under section 7 – Where a person claims that a public authority has acted (or proposes to act) unlawfully under s.6, then the person may bring proceedings or rely on the Convention in proceedings brought against him. However, this only applies where the person is a “VICTIM” of the act in question. Judicial remedies for unlawful actions are addressed by section 8. The court is empowered to grant such relief or remedy, or make such order, within its powers as it consider just and appropriate. This could, in some circumstances, include an award of damages if that is necessary to afford “just satisfaction” to the person in whose favour it is awarded.
As noted above, the HRA 98 s.3 requires that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with “Convention rights” – (as defined in s.1). This places a duty on the courts. How do the judges discharge this duty?
The various principles involved in statutory interpretation were well-established long before the HRA 98. Perhaps the three pricipal rules were:
Golden Rule ………… these rules are summarised here.
There were also a number of other principles – for example, the courts would presume that Parliament did not intend to legislate contrary to international obligations. The HRA98 s.3 has added a new dimension to statutory interpretation. It is necessary to consider what is meant by the words (in s.3) “as far as possible”.
The first step would be to interpret the legislation according to the “normal” rules of interpretation. If this does not achieve a compatible result then three general techniques come into play: reading “down” or “in” or “out”. Reading down involves limiting the meaning of words in the legislation so as to achieve an outcome compatible with convention rights. Reading in – here the judges will introduce words or meanings which create safeguards to ensure compatibility. Reading out – courts remove or refuse to enforce provisions which would otherwise make the legislation incompatible.
The problem with these techniques is that the judges are always aware of the fact that they are interpreters of legislation and not makers of it – see Re S  UKHL 10 at para. 39. Therefore, any reading “down” or “in” or “out” must not go against the grain or underlying thrust of the legislation. See Ghaidan v Ghaidan-Mendoza  UKHL 30 at para. 33 where Lord Nicholls said:
” Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must, in the phrase of my noble and learned friend Lord Rodger of Earlsferry, ‘go with the grain of the legislation’. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation.”
A Declaration of Incompatibility will be a last resort – see R v A  UKHL 25 at para. 44. Section 3 requires the court to do all it can to achieve a compatible interpretation.
Some examples of how section 3 has been applied may now be considered …
Examples of reading in a compatible way:
R v A  UKHL 25
The government wished to encourage victims of rape to come forward to give evidence. The Youth Justice and Criminal Evidence Act 1999 s.41 prevented evidence and cross-examination about the complainant’s previous sexual behaviour though, in very limited situations, a trial judge could give leave for such evidence to be admitted. Was this change to the law compatible with the right of a defendant to a fair trial? The House of Lords held that it was. Their view was the the HRA 1998 s.3 enabled the legislation to be read in a way which would make it compatible with Article 6. Such evidence could be admitted if, in order to secure a fair trial, it was necessary to do so.
This was probably an extremely strained reading of s.41. Parliament had deliberately legislated to limit the rights of defendants but the House of Lords effectively reinstated the broad judicial discretion which existed before the Act.
Ghaidan v Ghaidan-Mendoza  UKHL 30
Concerned the Rent Act 1977 Schedule 1. This provided for a surviving “spouse” of an original tenant to become the statutory tenant. Could this legislation benefit persons in same sex relationships? The House of Lords used the HRA 1998 s.3 to read the legislation in a compatible way so that the survivor of such a relationship could become the tenant. Such a reading of the legislation “went with the grain” or “the underlying thrust” of the legislation. [Law students should note here the dissenting speech of Lord Millett].
MB v Secretary of State for the Home Department  UKHL 46
This concerned the Prevention of Terrorism Act 2005. MB and AF were subject to “non-derogating” control orders. The orders were made on mostly closed evidence which is not made available to MB and AF. However, there was a system of “special advocates” to whom the evidence was disclosed. The House of Lords held that the procedures in the Act for the making of a control order were to be “read down” in accordance with HRA 98 s.3 where their effect would otherwise deny the controlled person a fair hearing compatible with Article 6.
Examples of Declarations of Incompatibility:
International Transport v Secretary of State for the Home Department  EWCA Civ 158
Under the Immigration and Asylum Act 1999, international Road Hauliers could be penalised for bringing people into the country illegally. They were usually hidden in lorries. The Act placed the burden of proof on the companies to disprove their liability. Held (Laws LJ dissenting) that this (reverse burden) was incompatible with Article 6. Other elements of this scheme were found to be incompatible with the First Protocol Article 1.
Bellinger v Bellinger  UKHL 21
The Matrimonial Causes Act 1973 s.11 stated – “A marriage …. shall be void on the following grounds … (c) that the parties are not respectively male and female”
A person, born as a man, had undertaken gender-reassignment and physically and emotionally was now a woman. She went through a marriage ceremony with a man and sought a declaration that the marriage was valid in law. Was section 11 compatible with her right to private life (Article 8) and her right to marry (Article 12)? The House of Lords held that her rights had been breached. It was not possible to read s.11 compatibly and so a declaration of incompatibility was issued.
A(FC) and others v Secretary of State for the Home Department  UKHL 56 (the “Belmarsh” case)
Part IV of the Anti-terrorism Crime and Security Act 2001 distinguished foreign suspects (who could be deported) from suspects who were British. Only the former were liable to internment. The British government entered into a derogation from Article 5. A 9 judge House of Lords quashed the derogation and made a declaration of incompatibility in respect of the relevant sections of the 2001 Act.
The Equality and Human Rights Commission
When the HRA 98 came into force, one criticism was the absence of a body charged with promotion of human rights. This was addressed by the Equality Act 2006.
The Equality and Human Rights Commission was launched in October 2007, taking over the role and functions of the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC) and assuming new responsibilities for sexual orientation, age, religion and belief, and human rights.
The Commission is a Non Departmental Public Body (NDPB), established under the Equality Act 2006 as a corporate body. The Commission is sponsored by the Government Equalities Office (GEO). There is a board of commissioners who steer the commission’s work and direction.
Many of those who worked in the previous equality commissions joined the new Commission, creating a body with an enormous wealth of experience and knowledge about race, sex and disability equality and discrimination. Many people have since joined the Commission – experts in sexual orientation, age, religion and belief and human rights and people with skills and experience in all relevant functions.
The Commission covers Great Britain i.e. England, Scotland and Wales, but not Northern Ireland. We have offices in London, Manchester, Cardiff, Glasgow and Edinburgh, and a regional presence in 9 offices in England and 1 in North Wales.
See the Commission’s website for details of its work on human rights
A Bill of Rights for the United Kingdom ?
From time to time, British politicians have argued that the HRA 98 be repealed and replaced by a British Bill of Rights. Even if that were to occur, the U.K. would continue to be bound by the European Convention.
The matter was discussed in detail by the Parliamentary Joint Committee for Human Rights 29th Report of Session 2007-8. The civil rights organisation LIBERTY published “British Bill of Rights: Informing the Debate” (Justice, November 2007).