• Elena Handtrack

What you may have missed about the HRA


There is a lot to study about the Human Rights Act 1998 (HRA) and so it is easy to get lost in it all. I made a video on the key provisions of the Human Rights Act and you can find it in the constitutional law playlist of my channel. That video only covers the key provisions of the HRA, but if you are looking for some extra details, this is for you!


Section 10 of the HRA

Section 10 of the HRA creates a fast-track mechanism for removing incompatibilities with Convention rights. Section 10(2) and 10(3) read

(2) If a Minister of the Crown considers that there are compelling reasons for proceedings under this section, he may by order make such amendments to the legislation as he considers necessary to remove the incompatibility.
(3) If, in the case of subordinate legislation, a Minister of the Crown considers—
(a) that it is necessary to amend the primary legislation under which the subordinate legislation in question was made, in order to enable the incompatibility to be removed, and
(b) that there are compelling reasons for proceeding under this section,
he may by order make such amendments to the primary legislation as he considers necessary.

These Henry VIII powers give the government the ability to quickly respond to declarations of incompatibility, making it easier to make legislation compatible with the Convention rights. It is important to note that this fast-track mechanism is subject to one important limitation: Section 10(1) of the HRA. Under section 10(1), section 10(1) and section 10(2) will only apply if the parties can or will not appeal the court’s decision to issue a declaration of incompatibility.


What constitutes primary legislation under the HRA?

Most law students’ answer to the question ‘what constitutes primary legislation?’ would probably be ‘an Act of Parliament.’ But when we are talking about primary legislation under the HRA, this answer would be incomplete. Unlike the common law (Bancoult (No. 2)), the HRA also considers Orders in Council as primary legislation (section 21(1)).


The HRA and public bodies

Under section 6(1) of the HRA,

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The above provision can become ineffective when the public authority is required to act in an incompatible way through primary legislation. The case of Aston Cantlow established that not all public authorities are created equal. The two types of public authorities are core public authorities and hybrid public authorities (Elliott & Thomas, Public Law, 796). Core public authorities are always bound by section 6(1), whereas hybrid public authorities are not bound by section 6(1) if the relevant act is of private nature. If the relevant act is, however, of public nature, then section 6(1) applies to them (Elliott & Thomas, Public Law, 796).


Cases

R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008] UKHL 61

Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546


Legislation

Human Rights Act 1998


Academic Writing

Mark Elliott & Robert Thomas, Public Law (2nd edn, OUP 2014), 796 (textbook)