Authored By: Mitali Jethani
Middlesex University Dubai
Abstract
Section 6(1) of the Human Rights Act 1998 (HRA) places a duty on public authorities to act compatibly with Convention rights. This article critically explores how this provision influences the conduct of public authorities in the UK. Through examination of primary case law and legislative background, it discusses the merits and constraints of Section 6(1), with particular emphasis on its impact on administration, enforcement by the judiciary, and pragmatic issues for public authorities. The article also examines tensions between parliamentary sovereignty and protection of human rights, determining whether Section 6(1) is an effective catalyst for rights or in need of reform to address modern challenges.
Introduction and Background
The Human Rights Act 1998 was a constitutional legislative innovation in the UK, entrenching the European Convention on Human Rights (ECHR) as an integral part of domestic law. The main aim of the Act was to enable individuals to enforce Convention rights within UK courts rather than being required to go to the European Court of Human Rights in Strasbourg.
The foundation of the Act’s working lies in Section 6(1), which states:
“It is unlawful for a public authority to act in a way that is incompatible with a Convention right.”
This provision places a statutory obligation on public authorities — widely defined to include government departments, local councils, courts, and other such entities wielding public powers — to respect human rights when making decisions or carrying out duties. Section 6(1) thereby enables courts to review administrative action on grounds of human rights.
But the imposition of this duty gives rise to subtle constitutional and practical issues. To what extent does Section 6(1) restrict public authorities’ discretion? How have courts compromised between protection of rights and democratic government and parliamentary sovereignty? How much does this provision change public administration beyond compliance on the face of the law?
This article takes a critical and analytical look at these issues. It balances the extent and theoretical significance of Section 6(1), analyzes judicial approaches to its implementation, and considers challenges and possibilities for protection of rights within the UK legal system.
Scope and Theoretical Implications of Section 6(1)
Section 6(1) is noteworthy for its broad language and broad application. Section 6(3) definition of “public authority” is given to a very broad class of bodies, so provision may be applied in numerous areas of public administration.
Breadth of Duty and Challenges of Implementation
The wide ambit of Section 6(1) is to be welcomed in seeking extensive protection of rights. But this breadth is demanding. Public authorities vary significantly in terms of resources, skills, and organizational culture. Whereas major government departments will have legal services with knowledge of human rights duties, minor local authorities or non-departmental public bodies do not have such capacity.
This creates practical concerns of inconsistency in comprehension and application of the duty across the public sector. The duty to behave compatibly with Convention rights requires a degree of human rights literacy and procedural sophistication that can be patchily distributed.
Moreover, the duty under Section 6(1) is predominantly negative or procedural: public authorities must not act unlawfully but are not necessarily required to take positive steps to promote or develop rights. This significant distinction, often overlooked, limits the potential of Section 6(1) for developing a proactive rights culture within public administration.
Parliamentary Sovereignty and Constitutional Balance
Section 6(1) operates under the UK constitutional doctrine of parliamentary sovereignty. Incompatible primary legislation under Convention rights cannot be struck down by the courts but instead issue a declaration of incompatibility under Section 4 of the HRA, stating that Parliament must reform but without repealing the law from operation until altered.
This system is one of political and constitutional compromise. It preserves parliamentary dominance but can potentially prevent attempts to make provision for immediate protection against incompatible legislation.
Critically, this means that Section 6(1) imposes binding obligations on public authorities exercising powers under existing law only. If the law itself is incompatible with Convention rights, public authorities may be compelled to act incompatibly, raising problematic dilemmas.
Judicial Interpretation: Proportionality and the Balancing of Interests
The courts employed elaborate tactics to apply Section 6(1), and proportionality emerged as the keystone of review.
Proportionality as a Systemized Rights Review
Proportionality has the courts evaluating whether or not a public authority’s violation of a Convention right is proportionate, weighing the seriousness of the violation against the worth of the public interest pursued.
Compared to the traditional requirements of judicial review like irrationality or procedural fairness, proportionality allows for more content-based reflection on the merits of decisions. This makes it easier for courts to conduct more subtle balancing, weighing against each other competing rights and interests in mature justification.
However, proportionality also introduces judicial discretion that can vary with judges’ perceptions or opinions towards deference to the executive. For some critics, it may merge the line between law and policy, encroaching on democratic decision-making.
Key Case Law and Judicial Reasoning
- R (Daly) v Secretary of State for the Home Department (2001)
The House of Lords held that prison policy allowing cell searching in prisoners’ absence violated the right to private correspondence under Article 8 ECHR. The court aimed at reducing interference with rights and rigorously explored proportionality, forming a robust judicial guarantee of privacy in a difficult field of policy.
Daly depicts the courts’ eagerness to intervene on executive actions inordinately invading rights. But it also portrays tensions as courts negotiate their function within complex institutional environments, weighing security against privacy.
- R (Anderson) v Secretary of State for the Home Department (2002)
The case was one of the Home Secretary’s intervention in the minimum sentences, which triggered the right to a fair trial under Article 6 ECHR. The House of Lords ruled that this had to be carried out through the judiciary, stressing the importance of impartial and independent decision-making in criminal justice.
Anderson points out Section 6(1)’s potential to uphold constitutional principles and the rule of law, even in cases of executive action. It illustrates judicial activism in rights enforcement with restraint towards democratic government.
- R (UNISON) v Lord Chancellor (2017)
The Supreme Court struck down employment tribunal charges as infringing the right to access to justice under Article 6. This decision further rooted Section 6(1)’s role in ensuring fundamental procedural rights and equality before the law.
UNISON encapsulates the central role of the judiciary to remove barriers in enforcing rights but also records tensions with ministerial policies to control public spending.
Practical and Institutional Challenges
Capacity and Culture within Public Authorities
Success of Section 6(1), despite the statutory duty, depends on the awareness and commitment of public authorities about human rights. The majority of authorities are hampered by scarce resources, competing demands, and inadequate training.
Unless human rights culture is ingrained, the duty can so easily be treated as a legal technicality rather than an authentic decision-making tool.
Litigation Dependence and its Consequences
Enforcement of most of Section 6(1) relies on individuals taking matters to courts. Such reliance can:
- Enhance adversarial relations between rights holders and officialdom
- Tie up courts with complex assertions
- Encourage risk-averse behavior that may stifle innovation or public policy experimentation
These adverse effects raise questions on whether litigation should still remain the primary enforcement mechanism or be supplemented by other safeguards, e.g., independent human rights commissions or active government regulation.
Discussion: Balancing Democracy, Governance, and Human Rights
Section 6(1) reflects the UK’s peculiar constitutional arrangement, balancing the protection of personal rights in one direction with regard for parliamentary sovereignty and democratic decision-making in the other.
Its strength—integrating human rights into public administration and vesting courts with enforcement powers over rights—is its weakness—its de facto inability to invalidate legislation and procedural orientation—revealing underlying tensions.
The proportionality test offers a principled, structured means by which courts can weigh up rights against legitimate public interests. It is, nonetheless, dependent on judicial competence and sensitivity to context and may lead to inconsistent findings and indeterminacy.
Moreover, the success of the obligation also depends on the capacity and willingness of public authorities to integrate human rights into their operations beyond mere technical compliance.
Future improvement can include additional training, better statutory definition, and stronger institutional frameworks for effective proactive protection of rights.
Conclusion
Section 6(1) of the Human Rights Act 1998 significantly impacts public authorities in the UK because it imposes a statutory duty to act compatibly with Convention rights. Section 6(1) enhances accountability and access to justice, encouraging the awareness culture of rights within public administration.
Still, careful analysis indicates that structural constitutional bargains, functional facts, and judicial discretion condition its strength. Despite how creatively judges have used proportionality and protected fundamental rights, the balance between enforcing rights and democratic rule is tenuous.
To unlock the fullest potential of Section 6(1), there must be attempts to help public authorities understand and comply with their duties, clarify the respective roles of judiciary and legislature more clearly, and improve supplementary mechanisms for right protection.
Lastly, Section 6(1) is an essential but ever-evolving instrument within the UK’s human rights system, both in triumph and in continuing challenges in embedding fundamental rights within public administration.
Reference(S):
- Human Rights Act 1998, s 6(1), https://www.legislation.gov.uk/ukpga/1998/42/section/6
- R (Daly) v Secretary of State for the Home Department [2001] UKHL 26
- R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46
- R (UNISON) v Lord Chancellor [2017] UKSC 51
- Cane, Peter, Administrative Law (6th edn, OUP 2011)
- Craig, Paul, Administrative Law (8th edn, Sweet & Maxwell 2016)
- European Convention on Human Rights 1950
