The Convention Rights
Interpretation of legislation
Section 2 provides that the interpretation UK legislation must take into account Convention rights:
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.
Declaration of incompatibility
The UK courts can declare that legislation is not compatible with the European Convention on Human Rights.
(2) If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a declaration of that incompatibility.
However, a declaration cannot not stop the law concerned from functioning:
(6) A declaration under this section (“a declaration of incompatibility”)—
- (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
- (b) is not binding on the parties to the proceedings in which it is made.
If there is a declaration of incompatibility, Parliament decides whether it wants to amend the law. Fewer than 30 declarations of incompatibility were made in the first 10 years of the Human Rights Act.
Human rights apply to decisions and actions taken by public authorities:
It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
except if “as the result of one or more provisions of primary legislation, the authority could not have acted differently”. The failure to legislate is also not a breach.
- Section 1 The Convention Rights, Human Rights Act 1998, legislation.gov.uk
- Section 2 Interpretation of legislation, Human Rights Act 1998, legislation.gov.uk
- Section 4 (2), Human Rights Act 1998, legislation.gov.uk
- Section 4 (6), Human Rights Act 1998, legislation.gov.uk
- Section 6 Acts of public authorities, Human Rights Act 1998, legislation.gov.uk
- Section 6 (2), Human Rights Act 1998, legislation.gov.uk