Human Rights Act 1998 - Rights Protection Under The Act

Rights Protection Under The Act

The Act provides that it is unlawful for a public authority to act in such a way as to contravene Convention rights. For these purposes public authority includes any other person "whose functions are functions of a public nature." It also explicitly includes the Courts. Convention rights includes only those rights specified in section 1 of the Act (these are recited in full in Schedule 1). In the interpretation of those rights the Act provides that the domestic Courts "may" take into account the jurisprudence of the European Court of Human Rights.

Section 7 enables any person, with standing, to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. A person will have standing to do so provided they would satisfy the "victim test" stipulated by Article 34 of the Convention. This is a more rigorous standard than is ordinarily applied to standing in English, although not Scottish, judicial review.

If it is held that the public authority has violated the claimant's Convention rights, then the Court is empowered to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate." This can include an award of damages, although the Act provides additional restrictions on the Court's capacity to make such an award.

However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation. The Act envisages that this will ordinarily be a difficult standard to meet though since it requires the Courts to read such legislation (and for that matter subordinate legislation) "So far as it is possible to do so...in a way which is compatible with the Convention rights."

Where it is impossible to read primary legislation in a Convention compliant manner, the only sanction available to the Courts is to make a Declaration of Incompatibility in respect of it. The power to do so is restricted to the higher Courts. Such a Declaration has no direct impact upon the continuing force of the legislation but it is likely to produce public pressure upon the government to remove the incompatibility. It also strengthens the case of a claimant armed with such a decision from the domestic Courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the Convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.