The Human Rights Act 1998

Stated intention of Act was to give further effect to Convention rights in UK law rather than expressly
to incorporate the Convention.
s3 requires courts, so far as it is possible to do so, to read and give effect to legislation (both
primary and secondary) in a way which is compatible with Convention rights in the HRA.
Lord Roger in Mendoza words implied must go with the grain of the legislation.
S6 makes it unlawful for public authority to act in a way which is incompatible with a Convention
right. Includes courts and bodies of a public nature.
HRA preserves Parl sov as primary legislation cannot be struck down or disapplied (s3(2)(b)), and Parl
is not a public authority s6(3).
Only legal obligation Minister in charge of all Government Bills must state that Bill is compatible
with Convention rights, or why it is appropriate to proceed with the Bill even though it isnt s19.

Initial robust approach to interpreting statute: R v A (No 2) rape shield in s41 Youth Justice &
Criminal Evidence Act 1999 prevented Ds lawyers from questioning V about her previous sexual
conduct. S6 HRA used to allow such questioning; allowed reading of s41 YJCEA to be compatible with
HRA. Language of legislation stretched to be compatible. Wide power of s3.

But more restrictive approach developed

Re S CA deemed to have gone too far in introducing a starring system into the Children Act 1989
which would allow court to intervene in conduct of local authorities on specific occasions once a final
care order was made. Held by HL: s4. s3 proposition inconsistent with cardinal principle of CA 1989.
Bellinger v Bellinger Post-operative transsexual wanted to marry man. Wanted s11 Matrimonial
Causes Act 1973 (between male & female) to be read in keeping with HRA. Gender determination
was set at birth. S4 would have had wide ramifications.
NB Ghaidan v Godin Mendoza Ms gay partner had tenancy of flat protected under Rent Act 1977.
Died, M entitled to new tenancy: i) under RA as spouse of deceased or ii) assured tenancy under
Housing Act 1988 as member of family. Court said assured meaning landlord could charge more
rent. G appealed. HL: gay partner could = spouse for purposes of Rent Act.
S8 (everyone) read with s14 (discrimination). No legitimate aim of UK law to exclude homosexuals.
Lord Nicholls discretionary area of judgement - how much deference should Parl give?

Declarations of incompatibility - measure of last resort Lord Steyn in R v A (No 2)

S4 may be made in respect of incompatible primary and secondary legislation where primary
legislation prevents a compatible interpretation: s4(1)-(4). As gov ministers make secondary legislation,
courts will usually have power to strike down incompatible 2ndary legislation using s6 and 7 HRA.
Declaration may be made by courts listed in 4(5). Crown must be given notice where court is
considering making declaration and may join as a party to proceedings s5(1)&(2).
Law still valid s4(6), but can be fast-tracked to amendment (s10). Egs of declarations:
R (H) v Mental Health Review Tribunal Provisions of Mental Health Act placing burden of proving
fitness for release on patient found incompatible with Art 5.
R v Secretary of State for the Home Department, ex parte Anderson Higher tariff set by Home
Secretary under s29 Crime (Sentences) Act 1977 infringed Arts 5 & 6 HRA. Breached Art 5 but s3
would have been judicial vandalism, so s4 declaration.

Public authorities vertical and horizontal effect

Person may rely on Convention rights in bringing proceedings against a public authority (see s6(3)(a)
and (4)) and the public acts or omissions of any person certain of whose functions are functions of a
public nature: s6(3)(b), (5) & (6).
What constitutes a public authority? Poplar Housing should be given a generous interpretation.
So closely identified with local authority that it was deemed to be performing public functions.
R (Heather) v Leonard Cheshire Foundation local authority had exercised statutory powers in placing
H at home for disabled and funding placement under National Assistance Act 1948. But did not =
exercise of a public function. Provision of funding not decisive and no material difference in services
provided to privately V publicly funded residents.
But act wont be unlawful if giving effect to primary legislation which is incompatible with a
convention right s6(2).
Indirect horizontal effect
Court must not only interpret relevant legislation (s3(1)) but also rules of common law (under s6(1)) so
as to be compatible with Convention rights.
Ghaidan v Godin Mendoza
Douglas v Hello development of common law breach of confidence: Art 8 v Art 10.
If state found not to have made adequate provision for protection of Convention rights against abuse by
private individuals, and the ECtHR has found it to be in breach, court may develop common law to
ensure compliance.
Procedural aspects
Action to bring claim for infringement of Convention rights by public authority must be brought within
one year: s7(1)(a) and (5).
Can also use Convention rights in proceedings brought by such a body: s7(1)(b)&(6). No limit here.
Can rely on convention right whenever act in question took place s22(4). Limited retrospection.
S7 award of damages is primarily compensatory and modest (just satisfaction) eg Anufrijeva.

Examples of application of the ECHR under the HRA

MGN v Campbell right to privacy infringed developing law of confidence. Art 8 won over Art 10.
Brown v Stott right to silence (Art 6) balanced against public interest in traffic control s172 RTA
1988.
International Transport Roth penalty scheme imposed by Immigration and Asylum Act 1999 Part II
was not proportionate under Art FP.
Sheldrake not infringement to reverse burden if kept within reasonable limits (s5(2) RTA 1988
defence to prove no likelihood of him driving).
AGs ref No 4 Terrorism Act 2000 more serious, so unfair to reverse burden. Whilst statute by
implication imposed legal burden, s3 HRA used to interpret it as evidential.