H418/03 - Domestic enforcement and judicial review

Domestic protection before 2000

Before the main Human Rights Act provisions took effect on 2 October 2000, the UK had Convention obligations but individuals lacked a general domestic claim simply for violating the Convention.

The UK legal system distinguishes an international treaty obligation from a rule enforceable directly in a domestic court. Ratifying the ECHR did not, by itself, incorporate all its rights into English law. A person therefore needed a domestic route: for example, a tort claim for false imprisonment, habeas corpus to test the legal basis of detention, or judicial review of unlawful public action. Statutes, the common law and fair-procedure principles supplied important protections. The Convention could influence interpretation in appropriate circumstances, but could not simply displace clear primary legislation.

The principle of legality protects fundamental rights when interpreting general statutory powers. Courts presume that Parliament does not intend to override such rights through general or ambiguous words. In R v Home Secretary, ex parte Simms (1999), prisoners maintaining their innocence wanted journalists to interview them and investigate possible miscarriages of justice. A policy made interviews dependent on undertakings against publication. The House of Lords held the blanket restriction unlawful. General prison-management powers did not justify that interference with the prisoners' ability to seek access to justice through expression.

The limit matters. Simms did not establish unrestricted access for journalists to every prisoner or a judicial power to cancel any Act. Clear legislation could override a common-law right, while proportionate prison restrictions could be valid. Courts controlled the legal scope of executive power.

Someone without sufficient domestic redress could seek Strasbourg enforcement after satisfying its admission rules. The UK had accepted individual petition in 1966. That external route could establish the state's treaty responsibility but involved additional time and effort; it did not create the missing domestic cause of action. The HRA later added a general domestic framework without abolishing the older remedies.

Interpretation and incompatibility

The Human Rights Act 1998 gives domestic courts linked duties concerning Convention interpretation and legislation.

Under section 2, a court deciding a relevant Convention-right question must take account of relevant Strasbourg decisions. This is not an instruction that every ECtHR statement is binding domestic precedent. Domestic precedent rules remain important, while the UK's obligation to comply with a final Strasbourg judgment in a case against it is a separate treaty matter.

Under section 3, primary and subordinate legislation must, so far as possible, be read and given effect compatibly with Convention rights. The duty is stronger than merely choosing between two ambiguous meanings. In Ghaidan v Godin-Mendoza (2004), tenancy-succession wording about living as husband and wife was read to include a surviving same-sex partner. The interpretation removed discrimination connected with Article 8 and Article 14 while preserving the scheme's basic policy of protecting a surviving stable partner. It did not invent a new system of tenancies.

Interpretation has a limit: the court cannot adopt a meaning inconsistent with a statute's fundamental features or make policy choices requiring a new legislative scheme. If compatible interpretation is impossible, designated senior courts can make a section 4 declaration of incompatibility. Section 4(6) leaves the law's validity and operation intact and does not bind the parties. A lower court cannot award itself this declaration power.

Bellinger v Bellinger (2003) illustrates the boundary historically. Recognition of a transgender woman's marriage raised broad questions about legal recognition and its consequences. The House of Lords declined to resolve the needed scheme through section 3 and declared the relevant marriage provision incompatible with Articles 8 and 12. This is an example of the HRA remedy, not a statement of today's entire marriage or gender-recognition law.

A declaration identifies the problem for a legislative response. Parliament can amend the law; section 10 permits a ministerial remedial order where its statutory conditions, including compelling reasons, are met. Neither response is automatically compelled by the declaration. This preserves parliamentary sovereignty but may leave a claimant without immediate individual relief from the incompatible Act.

Public authorities and HRA claims

The ordinary HRA framework lets a person challenge a public authority's incompatible action rather than waiting to take every complaint to Strasbourg.

Section 6 makes incompatible public-authority action unlawful, including relevant failures to act. Courts and tribunals are public authorities. Bodies performing public functions can fall within the duty, but a private act does not become public merely because the body also performs some public functions. Parliament's legislative proceedings are excluded. Identify the actor and function instead of assuming that every business is directly liable under section 6.

There is an important primary-legislation exception. An authority is not unlawful under section 6 where primary legislation prevented it acting differently, or where it gave effect to an incompatible legislative provision within the specified exception. If a police force chooses an unnecessary intrusion using a discretion, the decision can be challenged. If an incompatible Act legally requires the result, section 3 and, where appropriate, section 4 become central. A claim cannot evade the constitutional distinction by relabelling the required action as a discretionary choice.

Under section 7, a person who is or would be a victim can bring proceedings in an appropriate court or tribunal, or rely on a right in existing proceedings. Victim status normally requires personal effect rather than an abstract objection. A defendant can, for example, raise a relevant right in proceedings brought against them. Not every HRA case starts as judicial review in the High Court: the appropriate route depends on the dispute. Some specialist legislation alters the general framework, so check the relevant statutory scheme.