Human rights act 1998

• Enforcement of Human Rights law

  Judicial Review
• Enforcement process

  1. Since the enactment of The Human Rights Act in 1998, claims relating to Human Rights have been directly enforceable through the domestic courts

  2. If a claimant has exhausted all possible national hearings without success, they may decide to take the case to the European Court of Human Rights in Strasbourg
• In 1997, a White Paper, "Rights Brought Home: The Human Rights Bill", said: "It takes on average five years to get an action into the ECtHR once all domestic remedies have been exhausted and costs an average of £30,000. Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost. It will also mean that the rights will be brought much more fully into the jurisprudence of the courts throughout the UK and their interpretation will thus be far more subtly and powerfully woven into our law".
• S2(1) Human Rights Act 1998


  A court or tribunal determining a question which has arisen in connection with a Convention Right must take into account any judgement, decision, declaration or advisory opinion of the European Court of Human Rights
• Effect of S2(1)

  The courts must take into account any previous decisions of the ECtHR, affecting judicial precedent and allowing the overruling of any previous English precedent that was in conflict with the ECtHR
• S3 Human Rights Act 1998

  Primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights
• Effect of S3

  This section has the potential to invalidate previously accepted (pre-2000) interpretations of Acts which were made without reference to the ECHR
• S4 Human Rights Act 1998

  Requires judges to make a declaration of incompatibility if a law is not incompatible with the Convention, but does not allow them to strike the law down
• Power of declaration of incompatibility

  Only available to the High Court, the Court of Appeal and the Supreme Court
• S6 Human Rights Act 1998


  It is unlawful for a public authority to act in a way which is incompatible with a Convention right
• S7 Human Rights Act 1998


  A person who claims a public authority has acted (or proposes to act) in an unlawful way may bring proceedings against the authority or rely on the Convention right in any legal proceedings, but only if they are (or would be) a victim of the unlawful act
• S12 Human Rights Act 1998


  If a court is considering whether to grant any relief which might affect the exercise of the Convention right to freedom of expression, and the respondent is neither present nor represented, no such relief is to be granted unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent or there are compelling reasons why the respondent should not be notified
• Invoking your Human rights

  Making a claim as an individual against your human rights can only be made against a public authority, which includes government departments, courts and tribunals, local authorities, police, prison and immigration officers, schools, ombudsmen, public prosecutors, NHS trusts and hospitals, and other organisations set up by law. It can also include some private companies, charities etc. that carry out a public function.
• Criteria for a public authority

  The courts will look at whether the organisation is publicly funded, supervised by a state regulatory body, exercising powers given to it by the law, taking the place of central or local government, providing a public service, acting in the public interest, or carrying out coercive powers devolved from the state
• Judicial review

  A review that questions the lawfulness of decisions made by public authorities, heard in the Administrative Court which is part of the Queen's Bench Division of the High Court. Public bodies that can be held under review include government ministers, local authorities, health authorities, chief constables, prison governors, and some tribunals.
• Locus standi


  The person bringing a judicial review action has to have an interest in the decision being challenged, and the claim has to be brought before the court quickly and within 3 months of the decision or action being challenged.
• Grounds for judicial review

  Illegality - public bodies can only do what the law allows them to do, and any failure to do so may be considered unlawful and ultra vires. Fairness - a public body should never act so unfairly that it amounts to an abuse of power, and must follow set procedures and be impartial. Irrationality and proportionality - the court may quash a decision if it is considered to be so unreasonable as to be 'irrational' or 'perverse', and must balance the legitimate aims of the state with the protection of an individual's rights.
• Possible outcomes of judicial review

  Quashing order, prohibition order, injunction, mandatory order, declaration, damages. All outcomes are discretionary and no remedy has to be given if the court finds the claimant's conduct has been wrong or unreasonable. There is a right to appeal to the Court of Appeal and Supreme Court.
• Role of the ECtHR

  The court can hear complaints from states against other states and from individuals against states. Only about 6% of cases referred are admitted for hearings. The criteria for admission includes the person being a victim directly affected, domestic remedies being exhausted, the application being made within 6 months of the final domestic court decision, the complaint not being anonymous, and the complaint not being substantially similar to a previous case or incompatible with the Convention.
• Guiding principles of the ECHR

  Living instrument - the ECtHR interprets the rights in the ECHR and this interpretation should be followed by all member states, but the court is not bound by its previous decisions and can develop the law. Autonomy - the ECtHR can give an autonomous meaning to legal words that may be different from their meaning in member states. Positive obligations - the ECtHR interprets the Convention to require states to take positive steps to prevent violations. Margin of appreciation - the ECtHR may allow states a degree of discretion when considering alleged violations of qualified rights.