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My Politics teacher wrote on her PowerPoint:

The Human Rights Act 1998 doesn't explicitly say that anyone has any rights. The HRA merely requires certain bodies to do certain things in relation to European Convention of Human Rights (ECHR) rights in certain circumstances. The Human Rights Act 1998 doesn't actually incorporate the ECHR rights — the HRA just gives them certain effects in domestic law. I.e. the HRA doesn't make the ECHR rights a substantive part of UK law — the HRA merely requires (among other things) UK courts to interpret UK legislation compatibly with the ECHR when this is possible.

But she doesn't know why. But then why did the UK incorporate EU law by section 2(1) of the repealed European Communities Act 1972 (ECA)? I know the UK exited the EU on January 31st 2020.

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  • The ECHR is nothing to do with EU law.
    – Stuart F
    Jun 23 at 11:31
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Your teacher is not completely correct. The ECHR is incorporated as a schedule to the HRA 1998. Schedules to an Act are part of the act and can be referred to by courts when interpreting the law.

But your teacher is right in that the body of the act says "There are some convention rights (see below for details)" and "The courts can declare legislation incompatible with the convention rights. and order Ministers to act to correct this.

The reason, I suppose, is to ensure that the HRA is compatible with the UK constitution, as a judge cannot create primary legislation, only "the Crown in Parliament" can do that. Unlike the USA, there is no provision for a judge to strike a provision from the law as "unconstitutional" or "counter to human rights". Instead, they have the power to declare a provision incompatible. It is then up to Ministers, and ultimately Parliament, to decide how to proceed.

The ECHR is different from most EU regulations and directives that were incorporated into UK law by the ECA. Most regulations are detailed and precise. They exist to allow different countries to work together and are highly technical. The ECHR deals in sometimes conflicting generalities. Simply copy and pasting the ECHR as an act would not have given any details on how it could be used, and ultimately would be worthless.

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