This page deals with enforcement of the European the Convention on Human Rights in the UK, and the Human Rights Act 1998 (HRA). Their effect and relevance are summarised on the main European Convention page.
- The Human Rights Act 1998 aims to “bring rights home”, so that Convention rights can be enforced in the UK courts rather than having to go to Strasbourg. Below Enforcement in UK courts.
- A claim for breach of the Convention against a public authority can be made to a UK court. Below Claim against a public authority.
- For a claim against anyone, whether a public authority or private sector, a UK court must if possible interpret legislation such as the Equality Act in accordance with the Convention. This may involve a linguistically strained interpretation. Below Claim against others.
- If UK regulations cannot be re-interpreted to comply with the Convention, the UK court can usually disapply them. It is different for primary legislation. Below Compliance by UK statutes and regulations.
- The Convention requires that an effective remedy – eg compensation- be given for breach of Convention rights. The Strasbourg court can also award compensation (‘just satisfaction’). Below Remedies and ‘just satisfaction’.
- A complaint can be made to the European Court of Human Rights in Strasbourg if all domestic remedies have been exhausted.
Enforcement in UK courts
The Human Rights Act 1998 makes the European Convention on Human Rights enforceable in the UK courts. It is no longer necessary to go to the European Court of Human Rights (ECtHR) in Strasbourg, though appeal to Strasbourg remains possible.
However there are differences depending on whether or not the complaint is against a public body:
Claim against a public authority
Where a ‘public authority’ breaches the Convention, a ‘victim’ can bring an action for breach of the Convention in the UK courts, under ss.6 and 7 Human Rights Act. Remedies are dealt with under s.8, which says that ‘just satisfaction’ below is relevant to how far damages can be awarded.
Under s.7(1)(b), in any other legal proceedings a victim can also can rely on a Convention right breached by a public authority.
Where the Equality Act applies, a claim against a public authority could also be made under the Equality Act and the court would be required to take the Convention into account in applying that Act as discussed below in Claim against others.
Claim against others
The Convention and the HRA can also be brought into play against someone other than a public authority provided there is an existing right of action to ‘hang’ the Convention argument onto. UK courts are obliged to respect the Convention rights even in deciding disputes between private individuals, companies etc. For example, the Convention could be cited in an Equality Act claim against even a private-sector employer or service provider. This is for two reasons:
- S.3 HRA expressly says that legislation must be interpreted in accordance with the Convention “so far as it is possible to do so”. UK courts can adopt a linguistically strained interpretation, but cannot rewrite legislation which is clearly incompatible with the Convention.
- UK courts and tribunals are public authorities bound by s.6 HRA above to implement the European Convention, except so far as there is clear primary legislation to the contrary. Common law (law developed by the courts) is therefore overridden by the Convention, which the courts must implement. However the UK courts are not required by the Convention to create a freestanding cause of action (eg on privacy rights Campbell v MGN (bailii.org), House of Lords, 2004 at para 132 and 49).
Compliance by UK statutes and regulations
UK statutes themselves should comply with the Convention. S.19 HRA obliges a government Minister responsible for introducing new legislation to Parliament to make a statement that the Bill is compatible with the Convention in his or her view (or to state that he or she wishes to proceed even though no such statement can be made).
However, the HRA does not allow a UK court to treat primary legislation as void for breach of the Convention. The higher courts can declare a statute to be incompatible with the Convention (s.4 HRA), but the statute will continue in force unless and until the Government decides to change it. The UK government can still be required by the Strasbourg court to pay compensation. An example of this:
Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs (ukconstitutionallaw.org), 2017
Because of the State Immunity Act 1978, the employment tribunal could not hear claims by workers in foreign embassies in London, for unfair dismissal and breach of other non-EU rights. This was even though the Act was in breach of the Convention.
In February 2021 the government announced it would lay an order to amend the Act (gov.uk) to comply with the European Convention on Human Rights. I don’t know whether that’s been done.
In April 2022 the ECtHR in Strasbourg awarded the claimants in Benkharbouche compensation against the UK government, for the breach of their Convention rights: European Court of Human Rights rules on embassies’ claims to immunity in relation to employment claims (essexcourt.com), May 2022.
Subordinate legislation such as regulations, if they cannot be re-interpreted to comply with the Convention, can be disapplied by the UK courts provided the parent statute does not prevent the removal of the incompatibility (s.3(2)(c) HRA, RR v Secretary of State for Work and Pensions (bailii.org), Supreme Court 2019, from para 27). Often the parent statute will be in general terms, so that there will be nothing to prevent the courts from setting aside a regulation which breaches the Convention. For example:
C & C v The Governing Body of a School, Upper Tribunal, 2018
The Upper Tribunal held that a regulation saying a tendency to physical abuse cannot be a “disability” within the EqA should be either re-interpreted or disapplied, as regards children in an education context. The Equality Act could therefore apply when an autistic child with a tendency to lash out was excluded from school.
Remedies and ‘just satisfaction’
Article 13 of the Convention provides “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority…”.
Furthermore, under Article 41 of the Convention, if the ECtHR in Strasbourg finds that there has been a breach of the Convention, and national law allows only partial reparation to be made, the ECtHR shall, if necessary, afford “just satisfaction” to the injured party. This seems to include money awards by the ECtHR for non-pecuniary damages such as anguish, distress, anxiety and feelings of injustice. Awards are at the discretion of the ECtHR.
This raises questions such as:
- whether there could be a claim by a pupil/student against a school for financial compensation in respect of discrimination, even though the Equality Act says a UK tribunal cannot award this: Resolving disputes in schools>Remedies: what can a tribunal order? Education claims are likely to fall within Article 14 of the Convention (discrimination) on the basis that they are within the scope of A2P1.
- if after Brexit the government decided more generally to cap compensation for Equality Act claims, could that be challenged where it does not provide full compensation for loss: Ability to amend Equality Act after Brexit>Capping compensation? In the important area of employment, it seems a challenge would only be a possibility if and so far as employment falls within the scope of the Convention.
These are deep waters. If the case falls within the scope of the Convention, perhaps the first question would be whether the Equality Act provision barring or restricting compensation could be “read down” so as to comply with the UK’s obligation under Article 13 to give an effective remedy (or, if the restriction is in a regulation, whether it should be disapplied). Otherwise, if the discriminator is a public authority there might be a claim against it in a UK court under s.7 Human Rights Act (above), distinct from any Equality Act claim. As a last resort there might be a claim to the ECtHR in Strasbourg for ‘just satisfaction’ under Article 41 – which under s.8(4) Human Rights Act a UK court deciding a s.7 claim should have taken into account.
Taking a case to Strasbourg
A complaint can be made to the European Court of Human Rights (ECtHR) in Strasbourg if all domestic remedies have been exhausted. I’m not going to say anything about that here.