3.5 - Human rights enforcement and judicial review

The Enforcement Map

The topic has four connected ideas: claims before the European Court of Human Rights, the role of domestic courts, the effect of decisions on states and claimants, and the process of judicial review. The core problem is simple: who has breached the right, where can the claimant go, and what can that body do?

Use this map before writing any answer.

The first exam trap is thinking that "human rights claim" always means "go straight to Strasbourg". It does not. AQA materials expect students to know that the Human Rights Act gives many Convention rights domestic effect, so the usual starting point is a domestic claim or domestic proceedings.

The second trap is thinking that every rights dispute is a direct claim against a private person. The ECHR binds states. The Human Rights Act directly controls public authorities. If the defendant is a private person, the claimant normally needs an existing domestic cause of action, such as misuse of private information, and the court then applies English law compatibly with Convention rights where possible.

The third trap is thinking judicial review is just another appeal. Judicial review checks the lawfulness of a public decision, including substantive Convention proportionality where rights are engaged, as well as the fairness of its process. It is not a general invitation for the court to replace the public body's view with its own view of what would have been better.

Domestic HRA Claims

The most important domestic enforcement provisions for AQA problem questions are Human Rights Act 1998 ss6-8. They turn Convention rights into rules that can be used against public authorities in courts in England and Wales.

Section 6 is the liability gateway. It makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, unless the authority could not have acted differently because of primary legislation. Public authorities include obvious state bodies such as police forces, local authorities, prisons, government departments and courts. A private body may be caught when it is performing a public function, but an ordinary private individual is not directly liable simply because their conduct affects another person's Convention rights.

Section 7 is the claimant gateway. A person who is a "victim" of the unlawful act may bring proceedings against the public authority or rely on the Convention right in legal proceedings. This matters in scenarios because you must identify who suffered the rights interference. A friend, pressure group or relative is not automatically the correct claimant unless the facts make them a victim in the Convention sense or the particular right allows the argument.

Section 8 is the remedy gateway. If a court finds an unlawful act under s6, it may grant relief or a remedy, or make an order, within its powers, if it considers that just and appropriate. Damages are possible, but not automatic. AQA examiner reports repeatedly reward students who know that s8 does not guarantee money for every breach. Sometimes a declaration, injunction, quashing order, or change in decision is the more appropriate response. Article 5(5) is an important specific example: compensation is expressly linked to unlawful arrest or detention.

Use this domestic HRA sequence.

Common confusion: a judge or court can be a public authority for s6 purposes, but that does not mean judges are normally sued personally for damages whenever a decision is Convention-incompatible. Judicial decisions are usually challenged through appeal, judicial review, or the specific procedural route available.

Domestic Courts And Legislation

Domestic courts have a central enforcement role even where no damages claim is being made. The Human Rights Act gives courts interpretive tools, but it does not make them able simply to strike down Acts of Parliament.

Section 2 requires courts to take into account relevant decisions of the European Court of Human Rights when deciding a Convention question. This is not the same as saying every Strasbourg decision is mechanically binding like a domestic precedent. The exam-safe phrase is: domestic courts must take relevant ECtHR case law into account.

Section 3 requires primary and subordinate legislation to be read and given effect compatibly with Convention rights so far as it is possible to do so. This can be powerful. It means a domestic court may choose a rights-compatible interpretation of statutory wording even by departing from literal wording, provided the reading does not contradict a fundamental feature or the grain of the legislation or create a new policy scheme.

Section 4 deals with the limit of interpretation. If a higher court cannot interpret primary legislation compatibly, it may make a declaration of incompatibility. The declaration signals that the legislation is incompatible with Convention rights, but it does not invalidate the Act, remove its legal force, or decide the individual case as if the Act no longer existed. AQA materials stress this point: English courts can still have to apply legislation even if it is Convention-incompatible.

Courts also matter in disputes between private parties. Suppose a celebrity sues a magazine for misuse of private information. The magazine is not directly sued under s7 HRA just because Article 8 is engaged. Instead, the claimant uses an existing domestic claim. The court, as a public authority, must apply and develop the relevant domestic law consistently with Convention rights where possible, often balancing Article 8 privacy against Article 10 freedom of expression.

This gives three different court roles.

The consequence for AQA answers is precision. If the defendant is a public authority, ss6-8 may be central. If the dispute is private, identify the domestic cause of action first. If the problem is incompatible legislation, explain s3 before s4 and keep parliamentary sovereignty in view.

Claims Before The ECtHR

The European Court of Human Rights is the international court that decides whether a state has breached the European Convention on Human Rights. It is not a further domestic appeal court and it does not decide ordinary English law questions for their own sake. Its focus is whether the respondent state has complied with its Convention obligations.

For AQA, the key points are:

1. Individuals can bring claims before the ECtHR.
2. States can also bring claims against other states, so it is wrong to say that only individuals can use the Court.
3. A claimant from England and Wales must normally exhaust domestic remedies before going to Strasbourg.
4. The claim is against the state, not against an ordinary private individual.
5. The Court may award just satisfaction, including damages and costs, but a finding of violation does not automatically rewrite English legislation or itself quash a domestic decision.

Use this route in an answer.

The margin of appreciation may appear in evaluation.

That does not remove rights protection. It affects how intensely the Court reviews the state's justification.