Human Rights before the Human Rights Act 1998 | AQA A-Level Law

For Specification 7162

AQA A-Level Law | Free Revision Notes

Estimated study time: 35 minutes

Human Rights before the Human Rights Act 1998 A-Level Law revision examines the position of Convention rights in the United Kingdom before the later system of domestic incorporation. AQA specifically requires students to understand both the status of the European Convention on Human Rights (ECHR) in the UK and the impact of decisions of the European Court of Human Rights (ECtHR). The key contrast is between the ECHR as an international treaty and the later domestic mechanisms created through the Human Rights Act 1998.

Learning Objectives 🎯

By the end of this revision page, you should be able to:

• Explain the status of the ECHR in the United Kingdom before the Human Rights Act 1998.

• Explain the importance of the ECHR as an international treaty.

• Explain how decisions of the European Court of Human Rights developed the interpretation of Convention rights.

• Explain the possibility of bringing a claim before the ECtHR.

• Analyse the limitations of relying upon international Human Rights protection before the later domestic mechanisms introduced by the Human Rights Act 1998.

• Compare the broad pre-1998 position with the system introduced by the Human Rights Act.

Revision Notes 📚

What does AQA require?

AQA expressly identifies:

Human Rights in the United Kingdom prior to the Human Rights Act 1998

and requires students to study:

• the status of the European Convention on Human Rights in the United Kingdom

• the impact of decisions of the European Court of Human Rights.

This topic follows the development of the Council of Europe and ECHR [Lesson 167. Council of Europe and ECHR] and comes immediately before the Human Rights Act 1998 [Lesson 169. The Human Rights Act 1998].

The position before and after the Human Rights Act should therefore be understood as a comparison.

The ECHR was an international treaty

AQA assessment materials describe the ECHR as an international treaty and distinguish it from common law and statute as a source of Human Rights law.

This is the starting point for understanding its status before the Human Rights Act 1998.

The ECHR contained Human Rights obligations, but its status was different from an ordinary Act of Parliament forming part of domestic statute law.

A useful distinction is:

Source	Nature
Common law	Law developed through judicial decisions
Statute	Law made by Parliament
ECHR	International treaty containing Human Rights obligations

AQA's 2025 examiner report specifically described the ECHR as an international treaty when discussing sources of law.

What changed with the Human Rights Act?

The structure of the AQA specification is important.

AQA separates:

Before the Human Rights Act 1998

• status of the ECHR in the UK

• impact of ECtHR decisions

from:

After the Human Rights Act 1998

• extent and method of incorporation

• interpretation of ECHR provisions

• constitutional impact.

This shows that the Human Rights Act represents a significant change in how Convention rights operated within domestic UK law.

AQA assessment material later refers specifically to the Human Rights Act as providing a method of incorporation of the ECHR provisions.

The central pre-1998 limitation

Before the Human Rights Act created its domestic statutory mechanisms, a person could not rely upon those later HRA procedures because they did not yet exist.

Modern AQA materials show that the Human Rights Act now provides, for example:

• s6, concerning incompatible acts by public authorities

• s7, allowing a victim to bring proceedings

• s8, allowing an appropriate remedy where the requirements are satisfied.

These provisions provide a useful contrast with the pre-HRA position.

The limitation before the Act was therefore that there was no equivalent Human Rights Act route through ss6 to 8 for bringing a domestic claim against a public authority for acting incompatibly with a Convention right.

This is one of the clearest ways to understand why incorporation mattered.

Do not confuse the ECHR with the Human Rights Act

The ECHR existed before the Human Rights Act.

They are not the same instrument.

ECHR

• an international treaty

• contains Convention rights

• interpreted through the European Human Rights system.

Human Rights Act 1998

• later UK legislation

• concerns incorporation and interpretation of Convention provisions within domestic law

• creates domestic statutory mechanisms connected with Convention rights.

📌 Memory tip: ECHR first, HRA later.

Convention rights still existed before the HRA

The fact that the Human Rights Act had not yet been enacted did not mean that the ECHR itself did not exist.

The preceding course material establishes the development:

Second World War and aftermath

↓

United Nations and UDHR 1948

↓

Council of Europe and ECHR 1953

↓

ECHR position in the UK before the Human Rights Act

↓

Human Rights Act 1998

The Convention therefore existed as part of the European Human Rights system before the later domestic incorporation examined in Lesson 169.

The European Court of Human Rights

The AQA specification requires students to understand the impact of decisions of the European Court of Human Rights upon the pre-HRA position.

The ECtHR is important because its decisions interpret the meaning and scope of the Convention.

AQA assessment materials repeatedly demonstrate that Convention obligations are not understood simply by reading the short wording of an Article. ECtHR interpretation can develop the obligations imposed by the Convention.

ECtHR interpretation can develop Human Rights protection

A particularly clear example comes from Article 2, the right to life.

AQA mark schemes explain that ECtHR interpretation has developed Article 2 so that it involves:

• a negative obligation on States not to take life

• a positive obligation to protect and preserve life.

AQA's 2024 mark scheme also describes the ECtHR as interpreting the ECHR as a “living instrument”, with Article 2 interpretation developing positive obligations on the State.

This demonstrates the impact that decisions of the ECtHR can have.

The Convention sets out the right, but judicial interpretation develops what that right requires in practice.

The ECHR as a “living instrument”

AQA's 2022 examiner report states that the ECtHR treats the Convention as a living instrument and interprets it in line with current attitudes and values of member States.

This means that Convention interpretation is not necessarily frozen permanently at the moment the ECHR was created.

For revision purposes:

Convention wording + ECtHR interpretation = developed understanding of Convention obligations

This explains why ECtHR decisions can have significant effects upon the scope of Human Rights protection.

Examples of ECtHR interpretation in AQA materials

AQA assessment material uses ECtHR case authority to demonstrate how Convention obligations have developed.

Examples include:

• Osman v UK, used in relation to positive obligations to protect life

• McCann v UK, used in relation to Article 2 and State use of lethal force.  

You do not need these cases to replace the main focus of Lesson 168. Their usefulness here is to demonstrate a wider point:

ECtHR decisions can clarify and develop what Convention rights require from States.

Detailed application of the individual Articles comes later in the course.

The effect upon States

AQA's enforcement content requires students to understand:

• claims before the ECtHR

• the effect of decisions on States

• the effect of decisions on claimants.

This reinforces the international character of the Convention system.

The ECHR imposes obligations primarily upon States rather than simply regulating relationships between private individuals.

The 2022 AQA paper expressly tested the proposition that Convention obligations are aimed primarily at States rather than individuals.

Bringing a case before the ECtHR

Access to the European Court provided an important mechanism for enforcing Convention obligations.

AQA's specimen assessment confirms that a claimant in England may bring an action before the European Court of Human Rights.

However, a claimant cannot simply bypass domestic processes.

The 2022 examiner report states that a claimant must first exhaust domestic remedies before taking a case to the ECtHR.

The broad route is therefore:

Human Rights issue

↓

Domestic remedies

↓

Domestic remedies exhausted

↓

Possible claim before the ECtHR

This becomes particularly important when evaluating the pre-HRA position.

Why was the ECtHR route important?

The international route meant that Convention protection was not meaningless simply because the later Human Rights Act had not yet created its domestic statutory mechanisms.

The European Court could:

• consider alleged violations of Convention obligations

• interpret the scope of Convention rights

• produce decisions affecting States and claimants.

This gave the Convention genuine significance before the Human Rights Act.

The pre-HRA system therefore should not be described as “no Human Rights protection”.

That would be inaccurate.

Why was the pre-HRA position limited?

The most important limitation was the separation between:

• the ECHR as an international treaty, and

• domestic UK law.

The later Human Rights Act changed the position by providing a statutory system concerned with the incorporation and interpretation of ECHR rights in domestic law.

The difference can be represented as:

Before the HRA	After the HRA
ECHR existed as an international treaty.	ECHR provisions operate through the HRA's domestic incorporation framework.
ECtHR decisions could develop Convention obligations.	Domestic courts also operate within the HRA framework.
Claimants could ultimately seek protection through the ECtHR after exhausting domestic remedies.	HRA provisions provide domestic mechanisms concerning incompatible acts by public authorities.
No HRA ss6 to 8 domestic statutory claim existed.	ss6 to 8 provide important domestic rights and remedies.

This comparison is useful because it explains the significance of the Human Rights Act 1998 [Lesson 169. The Human Rights Act 1998].

Limitation 1: reliance on an international rather than domestic framework

Before the later incorporation framework, Convention protection depended more heavily upon the international Human Rights system.

The ECHR existed and the ECtHR could interpret it, but the HRA's later statutory mechanisms were unavailable.

This meant that Convention rights had a different domestic status from rights directly provided through UK legislation.

Limitation 2: the ECtHR was not the first court for a claim

A claimant could not simply take every Human Rights dispute immediately to the European Court.

AQA's 2022 examiner report makes clear that domestic remedies must first be exhausted.

This placed the ECtHR at the end of the route rather than the beginning.

In evaluating the pre-HRA position, this can be contrasted with the later ability to make Convention-based arguments within the domestic HRA framework.

Limitation 3: no HRA action against public authorities

Modern AQA Human Rights questions frequently use s6 HRA.

AQA materials explain that:

• public authorities must act compatibly with Convention rights

• victims may bring proceedings under s7

• remedies may be available under s8.

Before the Human Rights Act, these statutory provisions did not exist.

Therefore a claimant could not use the specific domestic HRA ss6 to 8 route which students apply in modern Human Rights questions.

Limitation 4: domestic law remained important

Even after the HRA, AQA stresses that Human Rights disputes may involve several sources:

• common law

• statute

• ECHR.

Before the HRA's incorporation framework, this distinction between domestic law and the international Convention was even more significant.

The ECHR's existence did not make ordinary domestic legal rules disappear.

Human Rights protection had to operate alongside the existing domestic legal framework.

Parliamentary legislation and the ECHR

An important wider principle shown in AQA assessment material is that an English court must still apply an Act of Parliament even where there is incompatibility with the ECHR.

The 2022 examiner report explains that courts can and must apply statutes even if incompatible with the ECHR. Under the later Human Rights Act, certain superior courts may issue a declaration of incompatibility, but this does not invalidate the legislation.

This reinforces an important point:

The ECHR does not simply allow a domestic court to disregard an Act of Parliament.

Do not confuse Convention protection with a power to strike down primary legislation.

Was the pre-HRA system completely ineffective?

No.

A balanced evaluation should recognise both sides.

The pre-HRA position still offered protection

• The ECHR existed as an international treaty.

• Convention obligations applied to States.

• Individuals could ultimately bring claims before the ECtHR.

• ECtHR judgments developed the meaning of Human Rights obligations.

• Decisions could affect States and claimants.

But there were significant limitations

• The later HRA incorporation framework did not yet exist.

• The specific ss6 to 8 domestic mechanisms were unavailable.

• A claimant could not simply begin with the ECtHR.

• Domestic remedies had to be exhausted before an ECtHR claim.

• Convention protection therefore relied more heavily upon the international system.

A strong answer should present both protection and limitation, rather than describing the pre-HRA position as either completely effective or completely useless.

The impact of ECtHR decisions on the development of rights

ECtHR decisions can have an impact beyond the individual claimant because they interpret what Convention obligations mean.

For example, AQA materials explain that ECtHR interpretation of Article 2 has developed:

• positive duties to protect life

• obligations concerning risks to life

• requirements connected with investigation and State conduct.

This demonstrates how decisions can shape the understanding of the Convention itself.

The detailed rules are covered later in Article 2: right to life [Lesson 172. Article 2: right to life].

The pre-HRA position in one diagram

European Convention on Human Rights

International treaty

↓

Convention obligations on States

↓

Domestic legal processes remain important

↓

Domestic remedies must be exhausted

↓

Possible application to ECtHR

↓

ECtHR interprets Convention rights and decides claims

↓

Decision affects State and claimant

The later Human Rights Act changed this relationship by introducing a domestic incorporation framework.

The key comparison to remember

The simplest way to understand Lesson 168 is:

Before the Human Rights Act, the ECHR already protected Human Rights at international level, but the later HRA framework for incorporating and enforcing Convention rights domestically had not yet been introduced.

This is the bridge between Council of Europe and ECHR [Lesson 167. Council of Europe and ECHR] and the Human Rights Act 1998 [Lesson 169. The Human Rights Act 1998].

Key Words 🔑

Key word	Student-friendly definition	How it may be used in an exam
International treaty	An international legal agreement. AQA describes the ECHR as an international treaty.	Explain the status of the ECHR and distinguish it from domestic statute and common law.
ECHR	European Convention on Human Rights, containing the Convention rights studied by AQA.	Explain the source of Human Rights obligations before and after the HRA.
ECtHR	European Court of Human Rights, which considers claims and interprets Convention obligations.	Explain how Convention rights could be developed and enforced internationally.
Domestic remedies	Legal remedies available within a person's own legal system.	Explain what must generally be exhausted before an ECtHR claim.
Incorporation	The process through which ECHR provisions were given the later domestic framework considered under the Human Rights Act 1998.	Contrast the pre-HRA position with the system after enactment of the HRA.

Hints from the Examiner Reports 💡

Examiner hint: Do not confuse the ECHR with European Union law. The 2025 examiner report found that some students discussing sources of law confused the Convention with EU law and wrote about regulations and directives, which received no credit.

Examiner hint: Know the route to Strasbourg. The 2022 report confirms that a claimant must first exhaust domestic remedies before taking a case to the ECtHR.

Examiner hint: Be precise about the legal source you are discussing. AQA examiner material distinguishes common law, statute and the ECHR as an international treaty.

Examiner hint: ECtHR decisions matter because they can develop Convention obligations. AQA's 2022 report explains that the ECtHR treats the Convention as a living instrument rather than interpreting its obligations restrictively.

Common Mistakes ⚠️

Mistake: Saying the ECHR did not apply at all before the Human Rights Act

Why this is incorrect:The ECHR already existed as an international treaty and Convention claims could be considered through the European Human Rights system.

How to improve:Distinguish between the existence of Convention obligations and their later domestic incorporation through the HRA framework.

Mistake: Treating the ECHR as an Act of Parliament

Why this is incorrect:AQA describes the ECHR as an international treaty, while statute is a separate source of law.

How to improve:Remember the three-way distinction: common law, statute, ECHR.

Mistake: Saying a claimant could immediately take any dispute to the ECtHR

Why this is incorrect:AQA's 2022 examiner report states that domestic remedies must first be exhausted.

How to improve:Remember: domestic remedies first, Strasbourg later.

Mistake: Applying HRA ss6 to 8 to a pre-HRA situation

Why this is incorrect:Those are mechanisms created by the Human Rights Act 1998 and therefore belong to the later domestic framework.

How to improve:Check the date of the scenario before discussing HRA provisions.

Mistake: Saying ECtHR decisions had no significance

Why this is incorrect:AQA requires the impact of ECtHR decisions as part of the pre-HRA topic, and its assessment materials demonstrate that ECtHR interpretation can develop Convention obligations.

How to improve:Explain that the Court interprets rights and can develop what Convention duties require from States.

Exam-Style Questions ✍️

Question 1

Before considering the effect of the Human Rights Act 1998, which description best fits the ECHR in AQA assessment material?

[1 mark]

A. A piece of delegated legislation

B. An international treaty

C. An Act of Parliament

D. A source of European Union regulations

Question 2

State the name of the court which considers claims concerning the European Convention on Human Rights.

[1 mark]

Question 3

Explain what AQA means by identifying the ECHR as an international treaty rather than a domestic statute.

[4 marks]

Question 4

Explain two ways in which decisions of the European Court of Human Rights can be significant for Human Rights protection.

[5 marks]

Question 5

Priya believes that the UK has violated one of her Convention rights. She says:

“I can ignore every available UK legal remedy and immediately take the case to the European Court of Human Rights.”

Suggest why Priya's statement is incorrect.

[5 marks]

Question 6

Explain two limitations of the position of Convention rights in the UK before the Human Rights Act 1998.

[5 marks]

Question 7

A student writes:

“Before 1998 there was no Human Rights protection in the UK because the European Convention did not exist until Parliament passed the Human Rights Act.”

Explain why this statement is incorrect.

[5 marks]

Question 8

Discuss the extent to which the ECHR and the European Court of Human Rights provided effective Human Rights protection for people in the UK before the domestic framework created by the Human Rights Act 1998.

[15 marks]

Answers and Mark Scheme

Question 1: [1 mark]

B. An international treaty.

Question 2: [1 mark]

European Court of Human Rights.

Question 3: [4 marks]

Indicative content:

• The ECHR is identified by AQA as an international treaty.

• It should therefore be distinguished from an Act of Parliament.

• Domestic statute is a separate source of law.

• The later Human Rights Act deals with the incorporation and domestic operation of ECHR provisions.

Question 4: [5 marks]

Indicative content may include:

• The ECtHR interprets Convention provisions.

• Its interpretation can develop the meaning and scope of rights.

• AQA materials show that Article 2 interpretation has developed positive as well as negative State obligations.

• The Court treats the Convention as a living instrument.

• Decisions can affect States and claimants.

Credit two developed explanations.

Question 5: [5 marks]

Indicative content:

• Individuals can bring Human Rights claims before the ECtHR.

• However, the ECtHR is not automatically the first stage.

• AQA's examiner material states that claimants must first exhaust domestic remedies.

• Priya therefore cannot simply ignore the available domestic legal process.

• An ECtHR claim may become possible after the domestic route has been exhausted.

Question 6: [5 marks]

Indicative content may include:

• The ECHR had the status of an international treaty rather than the later HRA domestic incorporation framework.

• The domestic mechanisms contained in HRA ss6 to 8 did not yet exist.

• A claimant could not begin automatically with an application to the ECtHR.

• Domestic remedies had first to be exhausted.

• Human Rights protection therefore depended more heavily upon the international Convention system than under the later HRA framework.

Credit two developed limitations.

Question 7: [5 marks]

Indicative content:

• The ECHR existed before the Human Rights Act.

• AQA dates the Convention to 1953.

• It operated as an international treaty.

• The ECtHR interpreted Convention rights and considered claims.

• The Human Rights Act later concerned the incorporation and domestic operation of Convention provisions rather than creating the ECHR itself.

Question 8: [15 marks]

Indicative content:

AO1 knowledge and understanding may include:

• The ECHR as an international treaty.

• Convention obligations applying primarily to States.

• The role of the European Court of Human Rights.

• ECtHR interpretation of Convention provisions.

• The Convention as a living instrument.

• ECtHR development of obligations such as positive Article 2 duties.

• The requirement to exhaust domestic remedies before an ECtHR application.

• The later HRA framework concerning incorporation and domestic remedies.

AO3 analysis and evaluation may include:

• The ECHR provided genuine international Human Rights protection before the HRA.

• Individuals were not entirely dependent upon the willingness of the UK to define Human Rights domestically.

• ECtHR decisions could develop the scope of State obligations.

• The Court provided an international mechanism for considering alleged violations.

• However, the ECHR remained an international treaty rather than operating through the later HRA domestic incorporation framework.

• Claimants could not use the later ss6 to 8 mechanisms against public authorities.

• The need to exhaust domestic remedies meant that access to the ECtHR came later in the legal process.

• The system therefore offered meaningful protection but was less integrated into domestic legal proceedings than the later HRA framework.

• A reasoned conclusion should assess both the importance of international protection and the limitations which explain the significance of the Human Rights Act 1998.

A strong answer should avoid the extremes of claiming that no Human Rights protection existed before 1998 or that the pre-HRA position was identical to the modern domestic framework.