How are your human rights protected by the courts?

The Human Rights Act 1998 gives effect to the human rights set out in the European Convention on Human Rights.

The Human Rights Act says all courts in the UK must apply the law in a way which respects your human rights, as far as this is possible.

Read this page to find out more about how the courts apply the law so it doesn't breach your human rights.

Protecting your human rights

All courts in the UK must interpret and give effect to the law in a way which is as close to the Human Rights Act as possible. Courts must do this in all cases they deal with. This includes cases against a public authority as well as cases between individuals.

What if the courts can’t apply the law in a way which respects human rights?

Sometimes it’s impossible to interpret the law in a way which is compatible with the Human Rights Act. In this case, the courts may have to apply it anyway even if it breaches your human rights.

Which laws must the courts apply even if they breach the Human Rights Act?

Laws made by Parliament

Parliament is responsible for making the laws in the UK. When Parliament makes laws it doesn't have to follow the Human Rights Act. This means it can make laws which go against or are incompatible with the Human Rights Act. Laws made by Parliament are called Acts of Parliament.

The courts must apply Acts of Parliament even if they breach your human rights. But some courts, like the Court of Appeal, can say that the law is incompatible with the Human Rights Act. This is called a declaration of incompatibility.

It’s then up to Parliament to decide if the law should be changed.

What happens when a court makes a declaration of incompatibility?

It doesn’t change how the courts deal with your case, they will still have to apply the law to you. But it may mean that the law is changed in the future.

The government doesn’t have to change the law to make it compatible with the Human Rights Act, but it usually does.

Examples of declarations of incompatibility

A law which said a deceased father's details were not allowed to be entered on his child's birth certificate was declared incompatible with the right to respect for family and private life under article 8.

A law which gave the power to the Secretary of State for the Home Department to set the minimum period that must be served by a mandatory life sentence prisoner was declared incompatible with the right to a fair trial under article 6.

In both these cases, Parliament changed the law to make it compatible with the Human Rights Act.

What about other laws?

Laws made by the National Assembly for Wales

The National Assembly for Wales must only make laws which are compatible with the Human Rights Act. If they make laws which breach your human rights, the courts don’t have to apply them.

Laws made under delegated powers

Many Acts made by Parliament and the national Assemblies in Wales, Scotland and Northern Ireland give the authority, usually to Ministers, to make laws which are called delegated or secondary legislation. Regulations and orders are examples of secondary legislation.

Courts don’t have to apply secondary legislation if it breaches the Human Rights Act.

Laws made by the courts

Some laws are made by the courts, this is called the common law. Courts must always apply and develop the common law so it doesn’t breach the Human Rights Act.

Next steps

• The Human Rights Act 1998

• Taking action about human rights

Other useful information

Equality Advisory Support Service (EASS)

The EASS helpline can provide advice and information on human rights and discrimination issues.

• More about the EASS helpline

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

• www.equalityhumanrights.com

Liberty

For more information and advice on the different rights protected under the Human Rights Act go to Liberty’s website at

• https://www.liberty-human-rights.org.uk

British Institute of Human Rights

You can also find more information about human rights in Your human rights guides from the British Institute of Human Rights (BIHR) at

• www.bihr.org.uk