Human Rights and UK Constitution

Revision notes:

Traditional ‘freedoms’ model

• ‘Rights’ cannot be taken away from citizens by the state. However, in an unwritten constitution such as the UK, there is little protection for such rights. On the other hand, written constitutions usually have fundamental rights (e.g. right to bear arms in USA). Written constitutions are a higher source of law that cannot be changed by the government.
• In the UK there is no written constitution. There is no ‘higher’ source of law and the doctrine of parliamentary sovereignty provides that there is no area where Parliament cannot legislate. Any right can be taken by an Act of Parliament.

The European Convention on Human Rights (fundamental human rights):
• Article 1: Obligation on Signatories to Respect Human Rights
• Article 2: Right to Life
• Article 3: Prohibition on torture
• Article 4: Prohibition on Slavery
• Article 5: Right to Liberty and Security
• Article 6: Right to Fair Trial
• Article 7: Right not to be Punished Except for Breach of Law
• Article 8: Right to Respect for Private Life
• Article 9: Right to Freedom of Conscience, Thought and Religion
• Article 10: Right to Freedom of Expression
• Article 11: Right to Freedom of Assembly and Association
• Article 12: Right to Marry
• Article 13: Right to an Effective Remedy
• Article 14: Prohibition on Discrimination (in relation to Convention Rights)
Cases that are in breach of the Convention Rights are heard by the European Court of Human Rights in Strasbourg.

ECHR and the UK

• Before 1998, for UK citizens to uphold their Convention rights, they had to take their case to Strasbourg Court and they could not do this until they had ‘exhausted all domestic remedies’ (been through UK legal system).
• When the UK was found to have breached the Convention, the government would usually change law to remove inconsistency as held in the Malone case.

Malone v Metropolitan Police Commissioner (No.2) [1979] Ch 344

Human Rights Act 1998

s.6 (1) HRA 1998 states that it is unlawful for a public authority to act in a way that is incompatible with Convention.

s. 19 Human Rights Act Statements of compatibility
(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill
(a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or

(b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill.

(2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.

A. Horizontal effects

Vertical effect – where the defendant is a public body
Horizontal effect – an Act that can be invoked in actions between private litigants
s.6 of the Human Rights Act 1998 places obligations on public authorities and not private individuals.

(a) Positive obligations for State (legislative/ executive/ judicial) authorities.

Article 1 of the European Convention on Human Rights “shall secure to everyone within their jurisdiction the rights and freedoms…”.

s.3 (1) HRA 1998 states that where possible, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

Declaration of incompatibility: if courts cannot interpret in a way other than it conflicting with Convention right then courts must make a ‘declaration of incompatibility’.

R (on application of H) v London North and East Region Mental Health Review Tribunal (2002)

Facts: H was detained in mental hospital under Mental Health Act 1983, applied to tribunal to be released, which required him to prove that the conditions of the detention no longer applied, which refused, sought judicial review of decision.

Held: The requirement on H to prove detention was no longer required imposed a reverse burden of proof which was incompatible with Article 5, which was held ‘incompatible with Article 5’.


s.4(2) of the Human Rights Act 1998 states the following:
“If the High Court, Court of Appeal or Supreme Court is satisfied that the statutory provision is incompatible with a Convention right, it may make a declaration of that incompatibility”.
Effects of s.4 declarations
s.4(6)(a) of the Human Rights Act states that “a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”.