What you'll learn

• Why the European Convention on Human Rights was created after the Second World War.
• How the Council of Europe, the Convention and the European Court of Human Rights fit together.
• How the Human Rights Act 1998 changed UK domestic law.
• Why human rights protection is built into the devolution settlements for Scotland, Wales and Northern Ireland.

The starting point: what are human rights?

Human rights are basic rights and freedoms that protect individuals from abuse by the state. In this topic, the key focus is on rights protected by the European Convention on Human Rights and brought into UK law by the Human Rights Act 1998.

Human rights law often involves a balance. Some rights are almost impossible for the state to justify interfering with, such as Article 3 freedom from torture. Other rights, such as Article 8 privacy and Article 10 expression, may be restricted if the restriction is lawful, pursues a legitimate aim, and is proportionate.

Why the ECHR was created

The European Convention on Human Rights, usually shortened to the ECHR, was created in the aftermath of the Second World War. The Holocaust, fascism and the abuse of state power made European states want a shared minimum standard of rights protection.

The Council of Europe was founded in 1949 to promote human rights, democracy and the rule of law. It is separate from the European Union. The ECHR was opened for signature in 1950 and came into force in 1953. The UK was one of the early states to ratify it.

This diagram shows the relationship between the international Convention system and UK domestic law.

Before the Human Rights Act 1998

Before the Human Rights Act 1998, the UK was bound internationally by the ECHR, but individuals usually could not rely directly on Convention rights in UK courts. If they wanted to argue that the UK had breached the Convention, they often had to take the case to Strasbourg after using up domestic remedies.

A useful example is Malone v UK (1984). Mr Malone complained about telephone tapping by the police. The ECtHR held that the lack of clear legal safeguards breached Article 8 ECHR. The principle is that state surveillance must have a proper legal basis and safeguards.

The Human Rights Act 1998: the main sections

The Human Rights Act 1998 does not make the ECHR part of UK law in exactly the same way as an ordinary statute creating a complete code. Instead, it gives Convention rights practical legal effect through several important sections.

Section 1: Convention rights

s1 Human Rights Act 1998 identifies the Convention rights protected in UK law. These are the main ECHR rights and certain Protocol rights.

Section 2: taking account of Strasbourg

s2 Human Rights Act 1998 says UK courts must take into account relevant decisions of the ECtHR.

This does not mean ECtHR decisions are strictly binding like decisions of a higher UK court under stare decisis, meaning the doctrine of binding precedent. In R v Horncastle (2009), the UK Supreme Court considered ECtHR case law on hearsay evidence but declined to follow it automatically. The principle is that Strasbourg decisions are highly persuasive, but UK courts retain some independence.

Section 3: interpreting legislation compatibly

s3 Human Rights Act 1998 requires courts to read and give effect to legislation in a way compatible with Convention rights so far as it is possible to do so.

In Ghaidan v Godin-Mendoza (2004), the House of Lords interpreted rent legislation so that a surviving same-sex partner could succeed to a tenancy. The principle is that s3 can allow a strong rights-compatible interpretation, provided the court does not completely contradict the fundamental meaning of the Act.

Section 4: declaration of incompatibility

s4 Human Rights Act 1998 allows certain higher courts to make a declaration of incompatibility where legislation cannot be interpreted compatibly with Convention rights.

In Bellinger v Bellinger (2003), a trans woman was not legally recognised as female for the purpose of marriage under the law at the time. The House of Lords issued a declaration of incompatibility, and Parliament later passed the Gender Recognition Act 2004.

Sections 6, 7 and 8: public authorities and remedies

s6 Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with Convention rights, unless primary legislation requires it to act that way. Public authorities include bodies such as police forces, prisons, local councils and courts.

s7 Human Rights Act 1998 allows a victim of an unlawful act to bring proceedings or rely on Convention rights in existing proceedings.

s8 Human Rights Act 1998 allows courts to grant a remedy that is just and appropriate, including damages where necessary.

Sections 10 and 19: political impact

s10 Human Rights Act 1998 allows ministers to use a remedial order to amend legislation after a declaration of incompatibility or an adverse ECtHR judgment.

s19 Human Rights Act 1998 requires a minister introducing a Bill to state whether, in their view, the Bill is compatible with Convention rights.

This flowchart brings the main HRA mechanisms together.

Parliamentary sovereignty and the HRA

A key feature of the UK constitution is parliamentary sovereignty, meaning Parliament can make or unmake any law, and no court can strike down an Act of Parliament.

The HRA is therefore a careful compromise. Courts can interpret legislation under s3 and signal incompatibility under s4, but Parliament remains legally free to keep, amend or repeal legislation.

Devolution and entrenched human rights protection

Devolution means transferring law-making powers from the UK Parliament to institutions in Scotland, Wales and Northern Ireland. These institutions are not sovereign in the same way as the UK Parliament. They can only act within the powers given to them by their devolution statutes.

The devolution settlements contain guarantees that human rights will be respected.

• Scotland: Under s29(2)(d) Scotland Act 1998, an Act of the Scottish Parliament is outside competence if it is incompatible with Convention rights. Under s57(2) Scotland Act 1998, Scottish Ministers cannot act incompatibly with Convention rights.

• Wales: Under s108A(2)(e) Government of Wales Act 2006, Senedd legislation is outside competence if incompatible with Convention rights. Under s81 Government of Wales Act 2006, Welsh Ministers must not act incompatibly with Convention rights.

• Northern Ireland: Under s6(2)(c) Northern Ireland Act 1998, Assembly legislation is outside competence if incompatible with Convention rights. Under s24(1)(a) Northern Ireland Act 1998, ministers and departments must not act incompatibly with Convention rights.

This gives Convention rights a stronger effect against devolved institutions than against the UK Parliament. If Westminster passes an incompatible Act, the usual HRA response is a s4 declaration of incompatibility. If a devolved legislature acts outside competence, the provision may be legally invalid.

In Christian Institute v Lord Advocate (2016), the Supreme Court considered the Scottish “Named Person” scheme for children. The information-sharing provisions interfered with Article 8 privacy and family life and lacked adequate safeguards. The principle is that devolved legislation must stay within Convention-compatible competence.

AO3: evaluating the UK model

The UK approach has clear strengths. The HRA makes rights accessible in domestic courts, gives public authorities a rights-based framework, and allows courts to influence Parliament without destroying parliamentary sovereignty.

There are also criticisms. Some argue that s3 gives judges too much power to reshape legislation. Others argue that s4 is too weak because Parliament can ignore a declaration of incompatibility. The devolution position adds another layer: Convention rights are more strongly protected against devolved bodies than against Westminster, which can appear constitutionally uneven.