How does the Human Rights Act 1998 work?
The Human Rights Act gives ‘greater effect’ to the European Convention of Human 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 Human Rights Act 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 Human Rights Act  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 in a way that is compatible with Convention rights. (Common law is the law which has been developed through decisions of the courts themselves).

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.

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.

Public Authorities
The Human Rights Act requires public authorities to act in a way that does not breach Convention rights. The Human Rights Act 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. Private individuals and bodies will not be public authorities for the purposes of the Human Rights Act 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 Human Rights Act (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 Human Rights Act can be very difficult to determine. As there is no definition of a public authority in the Human Rights Act this is something that the courts have to decide on.

Taking proceedings under the Human Rights Act 1998
Someone who believes that a public authority has breached their Convention rights, or is proposing to, can bring court proceedings against the public authority. A person can also raise a breach of their Convention rights as a defence in any court proceedings against them. In either case the person must be a ‘victim’ of the breach or potential breach, that is, someone who is directly affected by it.

Generally, a person bringing court proceedings against a public authority under the Human Rights Act will be seeking a declaration that the public authority has breached their Convention rights or is proposing to do so. If the breach is continuing they will also want an order that the public authority should stop acting in a way that breaches their Convention rights. They may also seek compensation, although the courts have made it clear that it is not always appropriate for them to award this.

When someone brings proceedings against a public authority for breach of their Convention rights, the public authority may be able to defend itself by saying that it had no choice but to act in the way that it did because it was required to do so by an Act of Parliament. Where this happens the most the person bringing the case may hope to achieve is a declaration of incompatibility.

In most cases the appropriate court proceedings to bring against a public authority under the HRA will be an application for Judicial review. Court rules require an application for judicial review to be brought ‘promptly’ and in any event within three months of the decision or action being challenged. Where someone does not make an application for judicial review there is a one year time limit for starting proceedings.

Proceedings against private individuals or bodies
As private bodies and individuals are not required by the Human Rights Act to respect Convention rights, it is not possible to take proceedings under the Human Rights Act against them. This does not mean, however, that the Human Rights Act will not have an effect on court proceedings between private bodies or individuals. This is because the courts themselves are public authorities under the Human Rights Act and are also required to interpret existing laws and to develop the law in a way that is compatible with Convention rights.