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The Human Rights Act 1998
Courts and tribunals
The position in relation to a ‘court or tribunal’ is the same as that for standard public
authorities.

19.2.3 How does the HRA take effect?

The HRA provides for the Convention to be given effect in two ways. First, by the
interpretation of existing legislation:

So far as it is possible to do so . . . legislation . . . must be read and given effect in a
way which is compatible with Convention rights.
(Section 3(1) HRA)

The courts will take a purposive approach and will ‘read in’ Convention rights unless the
language of the statute clearly prevents the courts doing so. Section 3 HRA must be used in a
way that respects the will of the legislature and preserves the integrity of statute law (R v
Lambert (2001)). However, it has been accepted that it will sometimes be necessary under
Section 3 HRA to adopt an interpretation that is linguistically strained, not only by reading
down the express language of the statute but also by the implication of provisions (R v A (No 2)
(2001)).

Secondly, the HRA imposes a requirement on public authorities to act in accordance with the
Convention:
It is unlawful for a public authority to act in a way which is incompatible with a
Convention right.
(Section 6(1) HRA)
However, this does not apply if the public authority could not have acted differently as a result
of a provision of primary legislation (Section 6(2)(a) HRA), or if the public authority is acting
‘to give effect or enforce statutory provisions which cannot be interpreted in a way which is
compatible with the Convention’ (Section 6(2)(b) HRA).

It should be noted that the HRA is intended to preserve Parliamentary sovereignty. The courts
cannot ‘strike down’ primary legislation, although they can declare that a statute is
incompatible with Convention rights (Section 4 HRA). If such a declaration is made there is a
‘fast track’ procedure for amending legislation (Section 10 HRA).

Actions of a public authority that are incompatible with Convention rights will be unlawful
unless one of the two ‘exceptions’ in Section 6(2) HRA is made out. The public authority must
show either that:

As a result of a provision of primary legislation, it could not have acted differently
(Section 6(2)(a) HRA), or
It was acting so as to ‘give effect to or enforce’ a statutory provision that cannot be
read in a way that is compatible with Convention rights (Section 6(2)(b) HRA).
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