The Impact of the UK Human Rights Act on Private Law
Sections 4 and 10 allows courts to issue a declaration of incompatibility where it is impossible to use section 3 to interpret primary or subordinate legislation to be compatible with the articles of the European Convention on Human Rights, which are also part of the Human Rights Act. A range of superior courts can issue a declaration of incompatibility. A declaration of incompatibility is not binding on the parties to the proceedings in which it is made,  nor can a declaration invalidate legislation. Section 10 gives a government minister the power to make a "remedial order" in response to either.
A remedial order may "make such amendments to the legislation as [the Minister] considers necessary to remove the incompatibility". In especially urgent cases, Parliamentary approval may be retroactive. Remedial orders may have retroactive effect, but no one may be guilty of a criminal offence solely as the result of the retroactive effect of a remedial order. Section 10 has been used to make small adjustments to bring legislation into line with Convention rights although entirely new pieces of legislation are sometimes necessary.
As of December , 29 declarations of incompatibility have been issued, of which . The one case not to have been remedied, as of December , is Smith v. Scott , concerning the right of serving prisoners to vote in the UK. Although the Act, by its own terms, applies only to public bodies , it has had increasing influence on private law litigation between individual citizens leading some academics source? This is because section 6 1 of the Human Rights Act defines courts and tribunals as public bodies.
That means their judgments must comply with human rights obligations of the state, whether a dispute is between the state and citizens, or between citizens, except in cases of declarations of incompatibility. Therefore, judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens.
Human Rights Act 1998
The Supreme Court decided paragraph 46 that "there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article But such disputes arise not from contractual arrangements made between two private parties, but tortious or quasi-tortious relationships , where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out the balancing exercise".
Therefore, in cases "where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected" then the Court decided, as set out in paragraph 59 "In these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession against her, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the and Acts.
Accordingly, for the reasons set out in paras above, we would dismiss this appeal on the first issue. Paragraph 40 supposed that " The duty of state judges to apply Convention rights to disputes between citizens is therefore about determining relationships between them, and applying domestic legislation accordingly.
If the duty is carried out then it's likely there is Article 6 compliance. Section 7 limits a right to bring proceedings under section 6 only to victims or potential victims of the unlawful act of the public authority. Section 8 provides a right for a court to make any remedy they consider just and appropriate.
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A remedy under the Act is therefore not limited to a Declaration of incompatibility possibly taking into account the equitable maxim Equity delights to do justice and not by halves. Section 9 provides a right to challenge the compliance of judicial acts made by the UK, but only by exercising a right of appeal as set out by the Access to Justice Act although not precluding a right to judicial review. For example, whether a judicial act properly applies legislation, or not.
Many rights established under the Human Rights Act were already protected under UK law such as freedom , but the purpose of the Act was largely to establish the European Convention on Human Rights in British law. Section 21 5 of the Act completely abolished the death penalty in the United Kingdom , effective on royal assent.
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The death penalty had already been abolished for all civilian offences, including murder Murder Abolition of Death Penalty Act and treason Crime and Disorder Act , but remained in force for certain military offences although these provisions had not been used for several decades. This provision was not required by the European Convention protocol 6 permits the death penalty in time of war; protocol 13, which prohibits the death penalty for all circumstances, did not then exist ; rather, the government introduced it as a late amendment in response to parliamentary pressure.
The Act provides that it is unlawful for a "public authority" to act in such a way as to contravene "Convention rights". Section 7 enables any person with standing as stipulated by Article 34 of the Convention to raise an action against a public authority which has acted or proposes to act in such a Convention-contravening manner. 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. 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.
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. Searching for the State in British Legal Thought. Ethics of the Legal Profession. The Sand Bucket List.
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