The Human Rights Act 1998: how it brings the Convention into domestic law through sections 2, 3, 4 and 6, the declaration of incompatibility, the duty on public authorities, and the relationship with parliamentary supremacy.

What this dot point is asking

OCR Component 3 Section B requires you to know how the Human Rights Act 1998 (HRA) gives effect to the Convention in UK law: its key sections (2, 3, 4 and 6), the declaration of incompatibility, the duty on public authorities, and how the Act protects rights without undermining parliamentary supremacy. The skill is to apply the sections to a scenario for AO2 and to evaluate the Act for AO3.

The answer

How the Act brings rights home

The key sections

• Section 2. When deciding a Convention question, a UK court must take into account the judgments of the European Court of Human Rights. It is not strictly bound by Strasbourg, but should generally follow a clear and constant line of its case law (R (Ullah); the courts have since asserted more independence).
• Section 3. So far as it is possible to do so, courts must read and give effect to primary and subordinate legislation in a way that is compatible with Convention rights. This is a strong interpretive duty: in Ghaidan v Godin-Mendoza the court read "spouse" to include a same-sex partner to achieve compatibility.
• Section 4. Where legislation cannot be read compatibly, a higher court (the High Court and above) may issue a declaration of incompatibility. This does not invalidate the Act, which remains in force; it signals to Parliament that the law breaches Convention rights and invites amendment (Bellinger v Bellinger; A v Secretary of State for the Home Department, on indefinite detention).
• Section 6. It is unlawful for a public authority (courts, the police, local councils, government departments) to act in a way that is incompatible with a Convention right, unless primary legislation requires it to act that way. A victim can bring a claim against the public authority.

The balance with parliamentary supremacy

Examples in context

A strong answer works through sections 6, 3 and 4 in turn and concludes on the available remedy.

Try this

Q1. Explain the effect of sections 3 and 4 of the Human Rights Act 1998. [shown at the 10-mark level for revision; some Section B questions are scenario or essay questions worth 20 marks]

• What the marker wants. Precise AO1: section 3 requires legislation to be read compatibly with Convention rights so far as possible (Ghaidan); section 4 allows a higher court to declare legislation incompatible where compatible interpretation is impossible, leaving the Act in force (Bellinger).

Q2. Discuss the extent to which the Human Rights Act 1998 gives judges too much power over the protection of rights. [Section B extended-response evaluation, 20 marks]

• Cue. An AO3 evaluation: weigh the courts' strong interpretive duty (s3) and declaration power (s4) and their influence over public authorities (s6) against the fact that they cannot strike down statutes and the last word stays with Parliament; judge whether the balance is right.