The HRA gives ‘greater effect’ to Convention Rights in two main ways:
It makes it clear that as far as possible the courts in this country should interpret the law in a way that is compatible with Convention rights.
It places an obligation on public authorities to act compatibly with Convention rights.
The HRA also gives people the right to take court proceedings if they think that their Convention rights have been breached or are going to be.
Interpreting the law compatibly
Parliament makes laws but it is the courts that have to interpret them. The HRA makes it clear that when they are interpreting legislation the courts must do so in a way which does not lead to people’s Convention rights being breached. Moreover, the courts are now under a duty to develop the common law – the law which has been developed through decisions of the courts themselves – in a way that is compatible with Convention rights.
What happens if the courts cannot read the law compatibly?
If the law is an Act of Parliament, the courts have no choice but to apply the law as it is, even though it breaches Convention rights. However, the higher courts (the High Court, the Court of Appeal and the House of Lords) have the power to make what is called a ‘declaration of incompatibility’. This is a statement that the courts consider that a particular law breaches Convention rights. It is meant to encourage Parliament to amend the law, but the courts cannot force the Government or Parliament to amend the law if they do not want to.
However, a declaration of incompatibility does not affect the validity of the incompatible legislation, and if your rights are being breached by this law, the courts are no power to act to stop that breach, or to give you compensation for any damage that the breach has caused you.
A lot of law is not set out in Acts of Parliament but rather in secondary legislation. Secondary legislation is law made under the authority of an Act of Parliament. Rather than set out detailed provisions in an Act of Parliament, Parliament will frequently give the power to make detailed laws to a government minister. The Act of Parliament will give the minister the power to make law but the law itself will be set out in regulations or orders. For example, most social security law is set out in regulations rather than in Acts of Parliament.
Where the courts find that an item of secondary legislation is incompatible with Convention rights, they have the power to strike the law down or not to apply it. This applies to all courts, not just the higher ones. The only circumstance where this is not possible is where the secondary legislation merely repeats a requirement of an Act of Parliament.
The HRA requires public authorities to act in a way that does not breach Convention rights. The HRA does not define the term public authority, but it is clear that bodies like the police, local councils and government departments and agencies are all public authorities. Courts and tribunals are expressly referred to in the HRA as public authorities.
Private individuals and bodies will not be public authorities for the purposes of the HRA unless they are performing a public function. So, for example, a private security company that has a contract with the Government to transport prisoners to and from court will be a public authority for the purposes of the HRA (and therefore under a duty to respect Convention rights) when it is transporting prisoners but will not be when it is guarding private property under a contract with a private organisation.
The issue of whether a person or body is a public authority for the purposes of the HRA can be very difficult to determine. As there is no definition of a public authority in the HRA this is something that the courts have to decide on. The development of case law in this area has for example meant that the rights of an elderly person are unlikely to be protected by the HRA when the local council pays for care to be provided in a private care home. By contrast, the same individual’s rights would be protected if the care were provided by the local council in a care home it runs itself (YL v Birmingham City Council and Others 2007).