This page deals with enforcement of the European Convention on Human Rights in the UK, mainly under the Human Rights Act 1998. Their effect and relevance are summarised on the main European Convention page.
Summary
- The Human Rights Act 1998 (HRA) aims to “bring rights home”, so that the European Convention on Human Rights (the Convention) can be enforced in the UK courts rather than cases having to go to Strasbourg.
- A UK court must if possible interpret UK legislation so as to comply with the Convention. In doing so the court can depart from the unambiguous meaning of the legislation, unless inconsistent with a fundamental feature of it. This applies whether the claim is against a public authority or a private sector company etc. Below Interpreting UK legislation to comply with the Convention.
- If UK regulations cannot be re-interpreted to comply with the Convention, the UK court can usually disapply them. It is different for Acts of Parliament. Below If UK law cannot be re-interpreted to comply.
- Against a public authority, it is possible to make a self-standing claim to a UK court for breach of the Convention. Below Claim against a public authority.
- The Convention requires that an effective remedy – eg compensation – be given for breach of Convention rights. I suggest two areas where this may be relevant to the Equality Act. 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.
- The government is not proceeding with its Bill of Rights Bill which would have altered the position.
Interpreting UK legislation to comply with the Convention
S.3 HRA expressly says that UK legislation must be interpreted in accordance with the Convention “so far as it is possible to do so”. This allows UK courts to depart from the unambiguous meaning of legislation, and indeed rewrite it, unless the change is inconsistent with a “fundamental feature” of the legislation (Ghaidan v Godin-Mendoza (bailii.org), House of Lords, 2004, quoted in T v MoD below). So any words implied by the court must “go with the grain” of the legislation. If regulations cannot be re-interpreted to comply, the UK courts can normally disapply them, but not Acts of Parliament: below If UK law cannot be re-interpreted to comply.
T v Ministry of Defence, Employment Tribunal, 2021
An employment tribunal held that under s.3 Human Rights Act, the Equality Act must be re-interpreted to permit a claim for disability discrimination which occurs after discharge from the armed forces. On the face of it, the employment provisions of the Equality Act exclude disability discrimination claims by members of the armed forces, including former members. However the tribunal held that as regards former members, this exclusion is discrimination contrary to Article 14 of the Convention. It was unjustified because the purpose of the exclusion was to protect combat effectiveness, but that purpose no longer applies once someone has been discharged.
An example on regulations under the EqA is C & C v The Governing Body of a School (below).
Lord Steyn in Ghaidan (bailii.org) above (at para 50) emphasised that interpretation under s.3(1) HRA “is the prime remedial remedy and that resort to section 4 [declaration of incompatibility, below] must always be an exceptional course. In practical effect there is a strong rebuttable presumption in favour of an interpretation consistent with Convention rights.”
A UK court’s obligation to re-interpret UK law under s.3 HRA applies even in deciding disputes between private individuals, companies etc.
One should clearly distinguish between (1) a claim under – and for breach of – the Equality Act, perhaps re-interpreted under s.3 HRA to comply with the Convention, and (2) a claim under s.7 HRA for breach of the Convention itself, below, which must be against a public authority and is largely not dealt with on this website.
Common law
The Convention does not only affect legislation. Common law (ie law developed by the courts) is overridden by the Convention, which the courts must implement. The HRA does not require UK courts to create a freestanding cause of action between private persons to comply with the Convention (Campbell v MGN (bailii.org), House of Lords, 2004 at para 132 and 49). For example though, as discussed in that case, in relation to privacy rights the UK courts have expanded the law of confidentiality to ensure protection of rights under Article 8 (private life) of the Convention.
So the Convention and HRA can come into play – even against someone other than a public authority – provided there is an existing right of action to ‘hang’ the Convention argument onto.
The legal basis for this is that UK courts and tribunals are themselves public authorities bound by s.6 HRA to implement the Convention, except so far as there is primary legislation to the contrary which cannot be re-interpreted (above) under s.3.
If UK legislation cannot be re-interpreted to comply
Regulations: can normally be disapplied
Subordinate legislation (defined in s.21(1) HRA) including most regulations, if they cannot be re-interpreted (above) 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 is in general terms, so that there is nothing preventing 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.
Acts of Parliament: declarations of incompatibility
Unlike regulations passed by the government, Acts of Parliament (and other primary legislation as defined in s.21(1) HRA) cannot be set aside or disapplied by a UK court for breaching the Convention. The higher courts (not including the Employment Appeal Tribunal) can declare an Act of Parliament to be incompatible with the Convention (s.4 HRA). However the Act of Parliament 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 (ukscblog.com), Supreme Court, 2017
The Supreme Court held that the State Immunity Act 1978 was in breach of Article 14 of the Convention in that it prevented employment claims by domestic workers in foreign embassies in London. The court made a declaration of incompatibility. However this did not enable the employment tribunal to hear claims by these workers for unfair dismissal and breach of other non-EU rights. The State Immunity Act remained in force, despite being in breach of the Convention. (Contrast the position of their employment rights based on EU law).In April 2022 the ECtHR in Strasbourg awarded the claimants in Benkharbouche compensation against the UK government, for 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.
Several years on from the Supreme Court decision, the State Immunity Act remains in force unamended, despite the courts’ findings. In February 2021 the government announced that it would lay an order to amend the Act (gov.uk) to comply with the Convention. In May 2022 the government published a draft: A proposal for a Remedial Order to amend the State Immunity Act 1978 (gov.uk).
The government should of course also consider the Convention before presenting a Bill to Parliament. 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).
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. A claim under s.7(1)(a) is to the County Court (unless in respect of a judicial act) or High Court subject to the normal jurisdictional limits (CPR 7.11). It may be by way of ‘judicial review’. Remedies are dealt with in s.8 HRA, which says that ‘just satisfaction’ below is relevant to how far damages can be awarded.
Accordingly s.7(1)(a) HRA allows self-standing claims to a UK court against a public authority for breach of the Convention. However this type of claim (not under the Equality Act) is outside the scope of my website. I normally do not mention this sort of claim on the website. An exception is Disability under Article 14 European Convention>Convention claim against a public authority. This self-standing claim against a public authority under s.7 HRA for breach of the Convention should be clearly distinguished from a claim under the Equality Act, for breach of the Equality Act, perhaps re-interpreted under s.3 HRA to comply with the Convention.
Also s.7(1)(b) HRA provides that in any other legal proceedings a victim can rely on a Convention right breached by a public authority.
S.3 HRA also applies of course, so that in claims by or against public authorities (like in other claims), legislation including the Equality Act must so far as possible be re-interpreted (above) to comply with the Convention.
There is the possibility of a claim to the ECtHR in Strasbourg (below) if domestic remedies have been exhausted.
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:
- could there be a claim by a pupil/student against a British 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 should be covered by Article 14 (non-discrimination) of the Convention on the basis that they are within the ambit of A2P1.
- if following Brexit the UK government decides 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, a challenge could presumably be made only if and so far as employment falls within the scope of the Convention.
I expect that even if a UK court held there to be a breach of the Convention in either of these cases, in a claim under the Equality Act the UK court could not actually award compensation contrary to the UK legislation. For example, the Equality Act specifically says that a pupil cannot claim financial compensation from a school (link above). That was a decision made by Parliament. I expect a UK court would not “re-interpret” the EqA to comply with the Convention and allow compensation, as the court might consider it goes against the grain of the legislation. Perhaps where a school is a “public authority” a UK court might award compensation in a Convention claim against it (above) specifically under Article 14, or the ECtHR in Strasbourg might award compensation. I’m not discussing either of those types of claim further.
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.
