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HRA 1998 Background Notes
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CON & AD LAW: HRA 1998 BACKGROUNDBackground and objectives
The HRA 1998 incorporates provisions of the European Convention on Human Rights (ECHR) into
domestic law. It is requires every domestic court and tribunal to interpret statutes, and review
administrative decisions consistently with Convention rights and, where appropriate, grant effective
remedies where rights have not been respected
The UK has been a signatory of the Convention since 1950 but, unlike many other member states,
it had not until recently given the Convention binding force in its domestic legal system. This meant
that individuals previously had to go to the European Court of Human Rights (ECtHR) in Strasbourg
to bring an action under the Convention
Lord Bingham: argued strongly in favour of its incorporation into UK domestic law
Labour Party, in its 1997 election manifesto, promised a government committed to the protection of
human rights enactment of the HRA 1998
The HRA 1998 applies to England, Scotland, Wales and Northern Ireland
S1 HRA gives effect to ECHR rights and freedoms in UK domestic law
The HRA 1998 created three key new obligations that have had a significant impact on UK domestic law.
These obligations are:
In determining legal questions in connection with an ECHR right, the courts must take into account relevant
ECHR case law: HRA 1998, s2
1) The first decision to consider the meaning and extent of HRA 1998, s2(1) was Alconbury
Developments: held that, while the case law of the ECtHR is not binding, domestic courts should follow
any clear and consistent jurisprudence unless there are special circumstances, or the decisions of the
ECtHR compel a conclusion fundamentally at odds with the distribution of powers under the UK
constitution
2) Ullah: Lord Bingham (mirror principle): ‘The duty of national courts is to keep pace with the Strasbourg
jurisprudence as it evolves over time: no more, but certainly no less’
3) An example of the mirror approach in operation can be seen in SOS for the Home Department v AF,
AM and AN: the law lords followed Strasbourg's decision in A v UK, which concerned whether the
withholding of 'closed evidence' from a terror suspect breached the right to a fair trial under ECHR, Art
6. Lord Hoffmann felt that he was bound by Strasbourg's decision, even though he believed it to be
wrong and damaging to national security. It is true that section 2(1)(a) of the Human Rights Act 1998
requires us only to "take into account" decisions of the ECHR. But the UK is bound by the Convention,
to accept the decisions of the ECHR on its interpretation. To reject such a decision would put the UK in
breach of the international obligation which it accepted when it acceded to the Convention
4) The decision in R v Horncastle illustrates a departure from previous Strasbourg case law, partly
brought about by the differing legal culture and system in the UK. Lord Philips: ‘There will be rare
occasions where this court has concerns as to whether a decision of the Strasbourg Court sufficiently
appreciates or accommodates particular aspects of our domestic process’
5) In recent years the relationship between the UK courts and the ECtHR has increasingly been described
as a 'dialogue'
Legislation must be read and given effect, so far as is possible, in a way that is compatible with ECHR
rights: HRA 1998, s3.
1) HRA 1998, s 3(1): 'So far as it is possible to do so, primary and subordinate legislation must be read
and given effect in a way which is compatible with Convention rights.'
2) R v A (C.S.H.): The Youth Justice and Criminal Evidence Act 1999, s 41 was designed to restrict
the circumstances in which evidence and questioning about a complainant's prior sexual history in trials
concerning sexual offences could be permitted. The issue was whether this new provision prejudiced
the D’s right to a fair trial under the ECHR, art 6. Held that the Act was incompatible with the right to a
fair trial.
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