12.3 Human Rights Act 1998 and EU Law in the UK Constitution

12.3 Human Rights Act 1998 and EU Law in the UK Constitution

Exam focus: FLK1 requires functioning knowledge of specified Human Rights Act sections, the Convention rights in Schedule 1, and the place of EU law in the UK constitution after Brexit. Independent OpenExamPrep uses the current official labels: assimilated law, assimilated EU case law and assimilated direct legislation. Do not treat EU law as a still-supreme general source across the UK.

Human Rights Act 1998: the working machinery

The Human Rights Act 1998 gives further effect in domestic law to specified rights from the European Convention on Human Rights. It does not make Strasbourg a domestic court of appeal, and it does not empower UK courts to strike down Acts of Parliament. The FLK list is ss.2, 3, 4, 6, 7, 8 and 10 plus Schedule 1. Learn those as a sequence you can apply to a client file.

Section 2 — taking Strasbourg into account. A court or tribunal determining a Convention-rights question must take into account judgments, decisions, declarations or advisory opinions of the European Court of Human Rights, plus certain Commission and Committee of Ministers materials, so far as it considers them relevant. Take into account is not the same as being bound. Domestic courts may decline to follow a Strasbourg line that misunderstands UK law or that the Grand Chamber itself is likely to qualify, but they cannot ignore Strasbourg.

Section 3 — interpretation. So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. The duty applies to legislation whenever enacted. It does not affect the validity of incompatible primary legislation. Ghaidan v Godin-Mendoza [2004] UKHL 30 shows that s.3 can require a strained reading that goes beyond ordinary meaning, but not a reading that goes against the grain of the statute or that amounts to judicial amendment of a fundamental feature. If s.3 cannot do the work, move to s.4. Do not jump to a declaration first.

Section 4 — declaration of incompatibility. If a higher court is satisfied that a provision of primary legislation is incompatible, it may make a declaration of incompatibility. The declaration does not affect the validity, continuing operation or enforcement of the provision. The client's dispute is still decided under the incompatible statute unless some other lawful route exists. The political follow-up is a ministerial remedial order under s.10 or a fresh Act. Subordinate legislation that is incompatible can usually be quashed unless primary legislation prevents removal of the incompatibility (s.3(2)(c)).

Section 6 — public authorities. It is unlawful for a public authority to act in a way which is incompatible with a Convention right, unless (s.6(2)) the authority could not have acted differently because of primary legislation, or it was acting to give effect to provisions that cannot be read compatibly. Public authority includes a court or tribunal and any person certain of whose functions are functions of a public nature. It does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. Hybrid bodies are public authorities only when doing their public functions. A private care home may be caught for some functions and not others.

Section 7 — proceedings and the victim test. A person who claims a public authority has acted (or proposes to act) unlawfully under s.6 may bring proceedings or rely on the Convention right in any legal proceedings, but only if they are a victim of the act, using the Article 34 ECHR meaning. Interest groups that have judicial review standing may still fail s.7 if they are not themselves victims. Time: proceedings under s.7(1)(a) must be brought within one year of the act, or a longer period the court considers equitable, subject to any stricter time limit for the procedure used. Judicial review's promptness / three-month rule therefore still bites.

Section 8 — judicial remedies. A court that finds a s.6 unlawfulness may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. Damages may be awarded only by a court that could award damages in civil proceedings, and only if necessary to afford just satisfaction. The court must take into account the principles applied by the European Court of Human Rights under Article 41. Damages are not automatic.

Section 10 — remedial orders. If a s.4 declaration has been made (and any appeal is over) or if the European Court of Human Rights has found the UK in breach after the material has been taken into account, a minister may by order make such amendments to legislation as the minister considers necessary to remove the incompatibility. There is a standard laying procedure and an urgent procedure. Section 10 is an executive fast-track; it is not a court power to rewrite the Act in the judgment.

Schedule 1 Convention rights

Schedule 1 sets out the Convention rights given further effect. Articles 1 (obligation to respect rights) and 13 (effective remedy) are not included; the Act itself is the domestic machinery. The listed rights are:

Qualified rights (8, 9, 10, 11) may be restricted if the restriction is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society (proportionate). Articles 3 and 4 are absolute in the Convention sense. Article 15 derogation is a separate, exceptional mechanism; do not reach for it on a standard licensing problem.

Worked method. A local authority evicts a disabled tenant under a statute that looks harsh. Ask, in order: is the authority a s.6 public authority (yes); is the tenant a s.7 victim (yes); can the housing statute be read compatibly under s.3; if yes, decide the case on that reading; if no, apply the statute and consider a s.4 declaration in a court with that power; remedies under s.8 follow only after a s.6 unlawfulness is established. Section 2 informs the content of the right. Section 10 is for government after a declaration, not for the first advice letter.

The place of EU law in the UK constitution

Until IP completion day (31 December 2020 at 11.00 p.m.), EU law entered domestic law through the European Communities Act 1972. Directly effective EU rights could override inconsistent Acts (R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603). That is history you need in order to understand what changed. It is not the current default.

The European Union (Withdrawal) Act 2018 repealed the 1972 Act and converted much then-existing EU law into domestic retained EU law so that the statute book did not fall away overnight. The European Union (Withdrawal Agreement) Act 2020 implemented the Withdrawal Agreement, including s.7A of the 2018 Act, which gives domestic legal effect to rights and obligations arising under that Agreement. The European Union (Future Relationship) Act 2020 implements aspects of the Trade and Cooperation Agreement. The UK remains dualist: a new EU instrument agreed in Brussels after exit is not automatically part of UK law.

Assimilated law (official terminology from 1 January 2024). Section 5 of the Retained EU Law (Revocation and Reform) Act 2023 provides that, as regards all times after the end of 2023, what had been called retained EU law is to be known as assimilated law. The same section renames retained EU case law as assimilated EU case law, retained domestic case law as assimilated domestic case law, and retained direct EU legislation as assimilated direct legislation. Use those labels in advice and in pleadings. They are not optional branding.

Supremacy and general principles. Section 3 of the 2023 Act inserts into the 2018 Act the rule that the principle of the supremacy of EU law is not part of domestic law after the end of 2023, in relation to any enactment or rule of law whenever passed or made. Assimilated direct legislation must, so far as possible, be read compatibly with domestic enactments and is subject to domestic enactments so far as incompatible. That reverses the old Factortame hierarchy for this body of law. Directly effective EU rights saved by s.4 of the 2018 Act were revoked from the end of 2023 (2023 Act s.2). General principles of EU law were likewise stripped of their former status as a free-standing domestic ground (2023 Act s.4). Do not plead an EU general-principle claim as if 2019 were still in force.

Courts and assimilated case law. European Union (Withdrawal) Act 2018 s.6: a court or tribunal is not bound by principles laid down or decisions made on or after IP completion day by the European Court, but may have regard to them so far as relevant. The Supreme Court is not bound by assimilated EU case law. In deciding whether to depart, it applies the same test as when departing from its own case law. The High Court of Justiciary has a parallel power in specified appellate sittings. Lower courts remain bound by assimilated EU case law until a court with departure power says otherwise, and they remain bound by assimilated domestic case law according to ordinary precedent.

What still looks like EU law, and why. Two features still appear in practice. First, assimilated law is domestic law of EU origin. Parliament can amend or repeal it like other domestic law. Second, Withdrawal Agreement rights, including arrangements for Northern Ireland now operated as the Windsor Framework, have domestic effect through EUWA 2018 s.7A. Specified EU rules can therefore still apply in Northern Ireland in relation to goods because UK statute gives the Agreement that effect. That is not a revival of general EU supremacy across England and Wales. On an FLK1 item set in England, do not disapply an Act of Parliament because a later EU regulation was adopted in Brussels. On an item about NI goods, look for the Agreement / s.7A route rather than inventing a general EU override.

Solicitor method. Identify the instrument. If it is an Act of Parliament, sovereignty and the Human Rights Act machinery apply; EU supremacy does not. If it is assimilated direct legislation, read it as domestic law now subject to later UK enactments. If the client relies on a CJEU judgment from 2022, it may be persuasive under s.6 but it is not binding. If the client is moving goods into Northern Ireland, check the Windsor Framework as implemented, not the pre-2020 EU treaties as a free-standing constitution.