The Human Rights Act strikes the right balance between protecting rights and preserving parliamentary sovereignty.

Introduction

This essay will critically examine the normative claim that the Human Rights Act 1998 strikes the right balance between protecting fundamental rights and preserving parliamentary sovereignty. At the core of this issue lies a constitutional tension between two foundational principles: parliamentary supremacy and judicial oversight of individual rights. The claim assumes a proportionality-based approach to legal reasoning — that the HRA maintains this equilibrium by enabling judicial interpretation and review, while stopping short of invalidating Acts of Parliament. The essay examines whether this balance is effectively achieved in practice, drawing on case law, statutory provisions, and academic commentary.

Overview of the HRA and Its Mechanisms

To understand how this balance operates, it is necessary to outline the background and structure of the Human Rights Act 1998.

Following the Second World War, the United Kingdom and other European nations collaborated to establish the European Convention on Human Rights (ECHR) in 1950, under the auspices of the Council of Europe. The Convention outlines a series of civil and political rights — including the right to life, the prohibition of torture, and the right to a fair trial — that apply to all individuals, regardless of their race, religion, or legal status. These rights were enforceable by the European Court of Human Rights (ECtHR), based in Strasbourg. However, until the late 1990s, UK citizens who believed their rights had been violated had to exhaust domestic legal remedies and then bring a case to Strasbourg, a process that was often time-consuming and expensive.

In response, the Human Rights Act 1998 was enacted to “bring rights home” (Jack Straw, Home Secretary, 1997) by incorporating most of the Convention rights directly into UK domestic law. This allows UK courts to hear human rights claims without the need to appeal to Strasbourg, while preserving parliamentary sovereignty by empowering courts to issue declarations of incompatibility rather than strike down legislation.

The HRA in Practice

Turning to how the HRA functions in the courts, Sections 3 and 4 illustrate the mechanisms through which it engages with existing legislation while preserving parliamentary authority.

The Ministry of Justice compiled a list of cases in which Section 3 of the Human Rights Act 1998 was used to interpret legislation in a manner compatible with Convention rights. Published on 24 October 2023, the list identifies 81 unique cases. It was created during policy work on the now-withdrawn Bill of Rights Bill and aims to illustrate how courts have applied Section 3 to ensure statutory provisions align with the Convention. However, the Ministry acknowledges that the list may not be exhaustive and has stated it does not intend to update or expand it.

In addition, as of November 2024, and according to the Ministry of Justice’s latest report to Parliament, UK courts have made a total of 47 declarations of incompatibility under Section 4 since the Human Rights Act came into force on 2 October 2000. This figure represents the most recent official total.

Declarations of incompatibility under Section 4 of the Human Rights Act do not invalidate legislation; instead, they serve as a formal signal to Parliament that a provision is inconsistent with the European Convention on Human Rights. Parliament is not legally required to act on these declarations, but in practice, it often does. According to the Ministry of Justice’s 2023–24 report to Parliament, 43 declarations of incompatibility have become final, and in 27 cases, the incompatibility was fully addressed by Parliament through legislative amendment or repeal. As an example, in Bellinger v Bellinger [2003] UKHL 21, the House of Lords found that the Matrimonial Causes Act 1973 was incompatible with Article 8 (private life) and Article 12 (right to marry), as it did not recognise the gender identity of transgender individuals. In response, Parliament enacted the Gender Recognition Act 2004, remedying incompatibility and illustrating how declarations can influence reform while respecting parliamentary sovereignty.

The courts utilise Section 3 of the Human Rights Act 1998 to interpret legislation — a method often referred to as the purposive approach — to ensure that, so far as possible, existing statutes are read in a way that is compatible with Convention rights. A landmark case demonstrating this interpretive power is Ghaidan v Godin-Mendoza [2004] UKHL 30, in which the House of Lords interpreted the Rent Act 1977 to extend tenancy succession rights to same-sex partners, thereby ensuring compatibility with Articles 14 (prohibition of discrimination) and 8 (respect for private and family life). The court emphasised that Section 3 requires more than simply choosing between possible meanings; it allows for interpretation that may depart from the literal meaning of the text, provided the modified interpretation does not contradict the fundamental features of the legislation. This case illustrates the significant constitutional role Section 3 plays in giving effect to rights while maintaining respect for the principle of parliamentary sovereignty, as the underlying statute remains formally unaltered.

The Independent Human Rights Act Review (IHRAR)

Support for the HRA’s balancing framework is also found in formal government reviews. Most notably, the IHRAR offers further insight into how Sections 3 and 4 are used, and how they might be improved.

Commissioned by the UK Government and published in 2021, the IHRAR directly addressed concerns about judicial overreach and parliamentary sovereignty. The panel concluded that the Act, particularly through Sections 3 and 4, strikes a careful constitutional balance. Section 3 obliges courts to interpret legislation compatibly with Convention rights “so far as it is possible to do so,” while Section 4 permits declarations of incompatibility without invalidating the legislation. The Review found that this mechanism appropriately respects the roles of both courts and Parliament, noting that “[t]he courts have no power to invalidate Acts of Parliament” (IHRAR, Chapter 3, para 51).

While broadly supportive of the legal framework, the panel made several recommendations to improve clarity and reinforce accountability. These included encouraging more transparent dialogue following declarations of incompatibility and clarifying judicial reasoning under Section 3. The panel also emphasized judicial restraint when engaging with Strasbourg case law, recommending that domestic courts avoid extending rights protections beyond ECtHR precedent unless clearly justified.

Feedback from the ECtHR

Reinforcing this assessment, external commentary from Strasbourg offers further evidence of the Act’s effectiveness and compatibility with the UK’s constitutional principles.

Delivering the 2023 Mackenzie-Stuart Lecture, ECtHR President Síofra O’Leary affirmed that the HRA has “done and continues to do a very good job” of embedding the Convention domestically. She praised the UK courts for engaging rigorously with Convention rights and noted that the principle of subsidiarity allows the ECtHR to defer to domestic courts that conscientiously apply Convention standards. This reduced the need for external intervention and supports the idea that rights are being upheld without eroding parliamentary sovereignty. Fewer cases reaching Strasbourg and a decline in violations found against the UK further reinforce this point.

Judicial Interpretation, Democratic Legitimacy, and the Critique of Overreach
Nonetheless, the role of the judiciary in applying the HRA has not escaped criticism. Some argue that an expansive interpretation risks undermining Parliament’s authority. However, closer analysis suggests this critique may be overstated.

The HRA has not diminished parliamentary sovereignty, nor has it handed unchecked power to the judiciary. Instead, it has created a constitutional space where courts and Parliament can engage in constructive dialogue, protecting individual rights without removing the legislature’s final word. Mechanisms such as Sections 3 and 4 preserve this balance by equipping judges to uphold rights while requiring them to respect Parliament’s legislative supremacy. Far from striking at the heart of sovereignty, the HRA acknowledges its importance by issuing advisory declarations of incompatibility rather than binding judgments.

Empirical evidence, such as the modest number of declarations and Parliament’s consistent engagement with them, suggests that the Act is working as intended. The support it receives from both the Independent Human Rights Act Review and the European Court of Human Rights underscores its constitutional legitimacy and practical success. Although concerns about judicial overreach are not without merit, they are often overstated, particularly when viewed alongside the judiciary’s demonstrated restraint and Parliament’s ongoing legislative control.

Conclusion
The Human Rights Act 1998 represents a carefully calibrated attempt to reconcile two core constitutional values: the protection of fundamental rights and the preservation of parliamentary sovereignty. Rather than creating an adversarial relationship between the judiciary and Parliament, the Act establishes a framework of mutual respect — one that enables courts to interpret and, where necessary, challenge legislation without displacing Parliament’s ultimate legislative authority. Through mechanisms like Sections 3 and 4, the Act promotes both judicial engagement with human rights and democratic accountability. The record of parliamentary responses to declarations of incompatibility, the restrained but meaningful use of interpretative powers by courts, and the alignment with Strasbourg principles all indicate that the Act has, in practice, struck a functional and principled balance. While criticisms remain, particularly concerning judicial influence on policy, the evidence suggests that the HRA fosters constitutional dialogue rather than disruption. In doing so, it exemplifies how a modern legal system can safeguard rights without eroding the foundations of democratic self-government.

Legislation

• Human Rights Act 1998

• European Convention on Human Rights (ECHR)

• Gender Recognition Act 2004

• Matrimonial Causes Act 1973

• Rent Act 1977

Cases

• Bellinger v Bellinger [2003] UKHL 21

• Ghaidan v Godin-Mendoza [2004] UKHL 30

• R (Nicklinson) v Ministry of Justice [2014] UKSC 38

• R (UNISON) v Lord Chancellor [2017] UKSC 51

Official Documents and Reports

• Ministry of Justice, Responding to Human Rights Judgments: Report to the Joint Committee on Human Rights on the Government’s Response to Human Rights Judgments 2023–24 (CP 1033, November 2024)

• Ministry of Justice, List of Cases Interpreting Legislation under Section 3 of the Human Rights Act 1998 (24 October 2023)

• Independent Human Rights Act Review, The Independent Human Rights Act Review Report (CP 588, December 2021)

Speeches and Lectures

• Síofra O’Leary, ‘Why the European Convention on Human Rights Still Matters’ (2023 Mackenzie-Stuart Lecture, University of Cambridge, 30 November 2023)

Hansard and Political Commentary

• Jack Straw, HC Deb 3 November 1997, vol 300, col 35 (statement on “bringing rights home”)