The Human Rights Act forms a significant element of the SQE Legal System syllabus. The following represents a summary of the most important sections and how they operate.
Section 3
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
This section creates an obligation on Courts to read primary and secondary legislation in way which is compatible with Convention rights.
The fact that a piece of legislation is not compatible with a convention right does not mean that the legislation is not enforceable or that it has no legal force.
Section 4
Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
(3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right.
(4) If the court is satisfied—
(a) that the provision is incompatible with a Convention right, and
(b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility,
it may make a declaration of that incompatibility.
In the event that a Court decides that a particular provision is incompatible with a Convention right, it can issue a decleration of incompatiilty. This would create political pressure on the Government to change the legislation. A minister of the Crown could also take remedial action under section () if they chose to do so,
Section 6
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
This section makes it unlawful for a public body to act in a way which is incompatible with a Convention right. It is important to consider whether it is the public body who is acting unlawfully, or whether the underlying legislation makes it impossible for the public body to act in any other way. In these circumstances, a declaration of incompatibility may be an appropriate remedy.
Section 7
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
This section is significant because it limits who can bring a claim under the Human Rights Act. When advising, you should always ensure that you are bringing a claim on behalf of a ‘victim’ of an unlawful act on behalf of a public body.
Note also that proceedings under the Act can be brought in ‘the appropriate court of tribunal’. This means that Human Rights Act claims can be brought in the Employment Tribunal, in Judicial Review – or in any Court where substantive proceedings are being brought.
Section 8
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
Section 8 means that a Court may make any order for relief or remedy within its powers as it considers just and appropriate. This means it is important to consider what remedies or relief are within the Court’s powers. Damages can only be awarded by a Court with the power to award damages. No award for damages is to be made unless the Court is satisfied that an award is necessary to afford ‘just satisfaction’ to the person in whose favour the order is made.