Key legislation - Human Rights Act 1998: The legal mechanisms for enforcing human rights

As with any legal situation, every attempt should be made to resolve grievances and conflict of opinion informally and locally, for example by using complaints procedures and mediation. If this fails, then generally, the appropriate legal action for a potential breach of someone’s Convention rights will be judicial review of the public body's action by the High Court. Such cases usually have to be taken within one year of the action that is the subject of the complaint. When the court considers the human rights issue raised it will review the law to see if the public body had any choice about the action it took. It will try to interpret the legislative basis of the public body's action to see if it can be interpreted in a way which is compatible with Convention rights. If the legislation can be interpreted compatibly and the public body is found to have acted in breach then the court can remedy that breach using its usual powers.

The HRA also gives the courts a power to grant damages for breach of Convention rights. The primary principle governing awards is that the victim should, as far as possible, be placed in the same position as if the violation of their rights had not occurred (Law Commission 2000). There have been few successful claims as the main aim is to ensure that rights are upheld.

The greater political significance of the HRA lies in the actions the courts can take if the legislation cannot be interpreted compatibly. Where it is incompatible the courts can make a declaration of incompatibility.

One early example of a declaration of incompatibility arose in the case of Mr H. Under the MHA 1983 the burden of proof rested on the patient to show that he no longer suffered from a mental disorder that warranted his detention. The Act did not require a tribunal to discharge a patient who could not be shown to be suffering from a mental disorder warranting detention. The courts found that the lack of such a requirement amounted to unlawful detention and infringed a person's right to liberty. The court therefore declared Sections 72 and 73 of the MHA 1983 incompatible with Article 5 of the HRA, which protects the right of liberty. The Ggovernment acted quickly and reversed the burden of proof requiring the tribunal to justify the patient's detention. [R. (on the application of H) v Mental Health Review Tribunal (2001)].

There is another mechanism built into the HRA, which is designed to ensure that all new legislation takes the Convention into account. A minister who is introducing a Bill into Parliament has to make a statement as to whether or not the Bill is compatible with Convention rights and to highlight those provisions of the Bill which are relevant. All Bills are scrutinised by the Joint Committee on Human Rights. This is a parliamentary committee of both Houses of Parliament that has considerable expertise in human rights law and is able to make proposals as to how a Bill can be made more compatible with Convention rights. It also carries out inquiries into problematic areas such as human rights and terrorism, and human rights and vulnerable people.