The rules of human rights law: the European Convention on Human Rights, the Human Rights Act 1998 and its key sections, and the enforcement of Convention rights in the domestic courts.

What this dot point is asking

This dot point covers the framework of human rights law in England and Wales: the European Convention on Human Rights (ECHR), the Human Rights Act 1998 (HRA) that brings it into domestic law, and how Convention rights are enforced. You need the key sections of the HRA (especially 3, 4, 6 and 7), the categories of rights (absolute, limited, qualified), and how the Act balances rights protection with parliamentary supremacy. WJEC tests accurate explanation and, in Unit 4, evaluation of the scheme.

The answer

The ECHR and the Human Rights Act

The key sections of the HRA 1998

The categories of rights

Convention rights fall into three categories, which govern how far the state may limit them:

• Absolute rights: can never be restricted or balanced against the public interest, for example Article 3 (prohibition of torture and inhuman or degrading treatment).
• Limited rights: may be restricted only in the specific circumstances set out in the Article itself, for example Article 5 (the right to liberty permits detention only in listed situations such as lawful arrest or after conviction).
• Qualified rights: may be interfered with where the interference is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society (proportionate), for example Articles 8, 9, 10 and 11.

Examples in context

The interaction of sections 3 and 4 shows how the Act balances rights with parliamentary supremacy. Under section 3 the courts will strain to read a statute compatibly with Convention rights wherever possible, even adopting a strained interpretation, so that the legislation can stand. Only where that is genuinely impossible do the higher courts turn to section 4 and issue a declaration of incompatibility, which leaves the offending Act in force but tells Parliament it conflicts with the Convention, as happened over indefinite detention of foreign terror suspects in the Belmarsh litigation (A v Secretary of State for the Home Department). The categories then shape every substantive claim: a complaint about Article 3 ill-treatment cannot be defeated by any public-interest justification because the right is absolute, whereas a complaint about a restriction on Article 10 expression is judged by whether the restriction was prescribed by law, pursued a legitimate aim, and was proportionate.

Try this

Q1. What does section 4 of the Human Rights Act 1998 allow a court to do? [2 marks]

• Cue. Make a declaration of incompatibility, which does not strike down the Act but signals the incompatibility to Parliament.

Q2. Name the three categories of Convention rights. [3 marks]

• Cue. Absolute, limited and qualified rights.

Q3. Explain how the Human Rights Act 1998 protects Convention rights in domestic law. [12 marks]

• What the marker wants. The incorporation of the ECHR and the key sections (2, 3, 4, 6, 7), the categories of rights, and the balance struck with parliamentary supremacy.