ANALYZING THE HUMAN RIGHTS ACT; DECLARATION OF INCOMPATIBILITY

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 THE HUMAN RIGHTS ACT; DECLARATION OF INCOMPATIBILITY

The Human Rights Act(hereinafter HRA) is a 1998 binding legislation in the UK enacted

to enforce the provisions of the European Convention on Human Rights (hereinafter ECHR),

which set out the rights and freedoms inherent to all human beings following the crisis of the

Second World War. Article 1 of the European Convention on Human Rights requires states to

ensure its provisions in their individual jurisdictions. The Human Rights Act provides a legal

framework for the protection of human rights, Vis, a Vis UK jurisdiction particularly.

The various rights and freedoms protected within the act include the right to life1, the

right to a fair trial2, the right to education for every child3, freedom from slavery and forced

labor4, freedom from any form of torture and degrading treatment5, the right to participate in free

and fair elections6, freedom of expression7 and the right to protection from discrimination in

respect to the rights and freedoms outlined in the act8 inter alia. The act is insistently promoting

the concept of equality and fair treatment of all human beings by ensuring all individuals are

legally protected regarding their rights and freedoms despite their race, religion, age, belief, sex,

or culture, among others.

Section 4 of the act states that ‘if the court satisfied that the provision is incompatible

with a Convention right and that (disregarding any possibility of revocation) the primary

legislation concerned prevents removal of the incompatibility, it might make a declaration of that

incompatibility.”9 Further, according to section 4, a declaration of incompatibility does not

1 Human Rights Act 1988, Article 2

2 Human Rights Act 1988, Article 6
3 Human Rights Act 1988, Protocol 1, Article 2
4 Human Rights Act 1988, Article 4
5 Human Rights Act 1988, Article 3
6 Human Rights Act 1988, protocol 1, article 3
7 Human Rights Act 1988, article 10
8 Human Rights Act 1988, article 14
9 Human Rights Act 1988, section 4(4)
necessarily affect the validity, continuing operation, or enforcement of the law and is not binding

on the parties to the proceedings or the government in which it is made10. The Act further

outlines the different courts with jurisdiction to enforce its provisions, including the Supreme

Court, the Judicial Committee of the Privy Council, the High Court, or the Court of Appeal in

England, Wales, or Northern Ireland, among others.11

This means that the provisions are only applicable if a court of law conclusively comes to

an informed determination of the compatibility of a provision of primary legislation with

outlined Convention rights. A Convention right in this case refers to “the rights and freedoms set

out in articles 2 to 12 and 14 of the Convention and articles 1 to 3 of the First Protocol as read

with articles 16 to 18 of the Convention.

The provisions of section 4 have on occasion been criticized and deemed to constitute a

limiting effect on the UK legal history and the independence of the court system. Scholars argue

that this provision has failed to consider the values and principles of UK citizens hence tainted

the originality of the British legal system. Another criticism of the Human Rights Act, in general,

is the extent to which courts have the authority to oversee administrative decisions. Courts are

authorized to scrutinize decisions made by public authorities upon the institution of claims and

determine their legality. This is deemed to be an act of interference over the function of

democratic decision-making.

The Human Rights Act has had a huge impact on the protection of the rights and

freedoms of individuals from violation and infringement in so far as public authorities such as

hospitals, the office of the ombudsman, the office of the public prosecutor as well as any other

private entities that have a public function are concerned.

10 Human Rights Act 1988, section 4(6)

11 Human Rights Act 1988, section 4(5)
 In its history, as earlier mentioned, stems from the provisions of the European

Convention on Human Rights, which outlined the equal rights and freedoms of all individuals

and provided for the establishment of the European Court of Human Rights to receive, hear,

determine and remedy any claims of violation or infringement of these fundamental rights and

freedoms. The court was, however, swamped with many cases from different jurisdictions within

Europe; hence the process of attaining justice in the court quickly became a technically and

procedurally slow and tedious process. The enactment of the Human Rights Act in the UK

remedied this problem by providing domestic jurisdiction for hearing such cases within domestic

courts. Section 8 of the Act outlines various forms of relief or remedies available to individuals

whose rights and freedoms have been infringed in one way or another. Such remedies are

discretionary hence can only be awarded reference to the varying circumstances of each case.

The Act limits the award of damages to circumstances where any other relief or remedy granted

would be unsatisfactory, and the consequence of award of any other form of relief would be

prejudicial to the court or the concept of judicial activism. In determining whether to award

damages and the appropriate amount of compensation, courts must critically take into

consideration the principles applied by the European Court of Human rights. Other judicial

remedies include injunctions and the award of an order of specific performance, which compels a

legal entity to act accordingly. In simple terms, the Act has made access to justice possible and

efficient for UK citizens.

The act incorporated the provisions of the European Convention on Human Rights hence

domesticating the application and enforcement of universally fundamental rights and freedoms in

UK legislation. In fact, the Human Rights Act was enacted with the aim and intention of

rationalizing the enforcement of Convention Rights domestically within the British courts.
Courts and tribunals are therefore obligated to carefully and without bias examine administrative

decisions by public authorities and determine whether these decisions violate the rights and

freedoms of citizens hence unlawful. This is an important oversight function by the judiciary.

The Human Rights Act has been a major legal element for the protection of fundamental

rights and freedoms for inhabitants of the UK, with section 6 obligating public authorities to act

lawfully, reasonably, and fairly when carrying out administrative functions. Individuals are

therefore protected against unreasonable abuse and misuse of powers and can even bring claims

to the domestic courts of the UK against such public authorities when their rights are violated. In

the case of R v CCGC, for example, a claim was brought against police officers who had

prevented protesters from making a demonstration. The court was of the opinion that the police

officers had acted unlawfully by infringing on their rights and freedoms stipulated within the

Act, such as the freedom of expression.12 Individuals can also bring claims against private

entities performing functions of a public nature for infringement of fundamental rights and

freedoms. A debate has, however, arisen as to whether the provisions of the act also protect

individual citizens against fellow individual citizens or individuals against private entities.

Scholars have asserted that though the Act fails to exclusively provide for individual v individual

lawsuits, the provisions of the Act can be applied alongside the substance of common law

principles as in the case of Douglas v Hello! (2001). The substance of the case concerned the

unlawful and unauthorized publication of wedding pictures from a private occasion by Hello

magazine. Although the proceedings were between two private entities, the court considered and

the provisions of the European Convention on Human Rights and, therefore, the Human Rights

Act.13 The act ensures that public officials are legally obligated to incorporate the principles of

12 R(on the application of Laporte) v Chief Constable of Gloucestershire Constabulary (2007) 2

All ER 529
13 Douglas v Hello! Ltd (2001) 2 WLR 992
fairness, equality, and reasonableness when making administrative decisions hence ensure all

citizens are treated with human dignity and are not subjected to any form of abuse. The Act is an

enrichment of the principles of administrative law that require fairness, reasonableness, and

equality with regards to adjudicative and administrative decisions affecting citizens.

The statutory obligation placed upon public workers to act on their positive obligations

has greatly improved the public service docket in the UK Citizens receive better, friendly,

adequate, and quality public services hence improved general confidence in the government and

its ability to perform its functions sufficiently. This has, in turn, positively affected the social

order and the confidence of the public in democratic decision-making functions and the judiciary

as an arm of government.

The enactment of the Human Rights Act also minimized any existing conflicts on the

application of international and national law in the UK. The HRA constitutionalized and

domesticated the enforcement of the provisions of the ECHR. Section 2 of HRA, for example,

provides for interpretation of domestic law in a way that is compatible with the provisions of

ECHR. The concept of declaration of compatibility also ensures that there is oversight for any

new laws that are enacted are appropriately compatible and align with the provisions set out by

the European Convention on Human Rights. During the process of its enactment, a report on the

Human Rights Act unanimously stated that the new legislation aimed at bringing a 'human rights

culture" to the UK. The Human Rights Act, therefore, harmonized international and domestic

law.

In effect, the Human Rights Act, pursuant to section 6, gave domestic courts the statutory

authority to protect the fundamental rights and freedom of UK citizens while simultaneously

ensuring the protection of sovereignty authority and respecting parliamentary democracy. The
act is a statutory manifestation of the sovereignty of the citizens of UK territory who have

enforceable rights and freedoms.

On a broader and global platform, the enactment of the Human Rights Act was a positive

influence on the global community. As an international legal entity, UK is well respected and

admired. The mere act of the state incorporating the provisions of an international convention

into its municipal law positively influenced other states to also incorporate similar conventions

and international treaties into their respective domestic law.