← The hardest concepts in United Kingdom law
In one breath
Parliament can make or unmake any law, and no court can strike down an Act of Parliament, however unjust it may seem. The Human Rights Act asks courts to read legislation in line with the Convention rights where that is possible and, where it is not, to declare it incompatible without invalidating it.
The picture
The editor’s margin note
Picture a book whose author alone decides what it says. An editor may read every sentence as kindly as the words will bear, so that an awkward line fits the principles the author has declared. When a sentence cannot be read that way, the editor may write in the margin, “this contradicts what you said you stand for”, but may not cross it out. Only the author can change the text, and the author may leave the note unanswered.
That is the shape of the Human Rights Act 1998. Section 3 tells courts to read legislation, so far as it is possible to do so, in a way that is compatible with the Convention rights. Section 4 lets the higher courts declare a provision incompatible when no such reading can be found. The declaration leaves the provision valid and in force, and Parliament decides whether to amend it. Parliament is the author: no Parliament can bind its successors, and no court holds a veto.
Where the picture stops working
Judges do not work for Parliament, and they also apply the common law and the unwritten parts of the constitution. What is “possible” under section 3 is less tidy than a margin note: courts may read words into or out of a provision, provided they do not contradict a fundamental feature of the legislation. The picture also ignores devolution: the Scottish Parliament, the Senedd and the Northern Ireland Assembly make law within limits set by Westminster.
How it really works
- 1Start with the rule: an Act of Parliament is the highest form of law, and courts apply it even if they think it unwise or unfair. They do not investigate how Parliament came to pass it (Pickin v British Railways Board).
- 2Under the Human Rights Act, apply section 3 first. If any reading of the legislation is compatible with the Convention rights, courts must adopt it so far as it is possible, even if it is not the most natural meaning (Ghaidan v Godin-Mendoza).
- 3If no compatible reading is possible, a higher court may make a declaration of incompatibility under section 4. The provision stays valid, and the declaration does not by itself change the outcome for the parties.
- 4The matter then returns to Parliament, which may amend the provision by a remedial procedure or by an ordinary Act; neither is legally required.
Why people get it wrong
- Thinking that the Human Rights Act lets courts strike down Acts of Parliament, as a constitutional court might. The strongest tool is a declaration of incompatibility, which leaves the Act valid.
- Treating section 3 as ordinary interpretation. It may require a meaning the words would not naturally bear, and it applies to legislation whenever it was passed; the limit is a reading that goes against a fundamental feature of the statute.
- Assuming that sovereignty is a political claim. It is a legal one: courts treat a validly passed Act as law, and a later Parliament can repeal an earlier one.
- Believing that decisions of the European Court of Human Rights bind UK courts as precedents. The Act requires courts to take them into account, which is a weaker duty.
A worked example
The facts are invented
An invented Act gives “a person who lived with the tenant as the tenant’s husband or wife” the right to take over a protected tenancy when the tenant dies. Kai lived for twenty years with Joss, the tenant. They are both men. Joss dies, and the landlord says Kai is not covered.
The court begins with section 3. Can the words be read as covering a couple in a stable relationship, whatever their sex, living together as if husband and wife? If so, the court must read the provision that way, and Kai succeeds. If the Act said in terms that the survivor must be of the opposite sex, no compatible reading would be possible, and a higher court could only declare the provision incompatible. It would still apply to Kai unless Parliament changed it.
Try it
A court concludes that a provision of an Act of Parliament cannot be read compatibly with a Convention right, however far section 3 is stretched. What can a higher court do?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Pickin v British Railways Board, [1974] AC 765
- Ghaidan v Godin-Mendoza, [2004] UKHL 30, [2004] 2 AC 557
- Jackson v Attorney General, [2005] UKHL 56, [2006] 1 AC 262
- Human Rights Act, 1998, sections 3, 4 and 6
Where to go next
Courses
Case briefs
More hard concepts in United Kingdom law
- Judicial review and its grounds (Administrative law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.