Integration of the Convention into UK law finally occurred with the new Labour government of 1997’s enactment of the Human Rights Act 1998 on 2nd October 2000.
Various academics and even judges have presented both sides of the argument surrounding the question of compatibility between the protection of human rights and the doctrine of parliamentary supremacy. For compatibility to occur, the protection for human rights provided through the 1998 Act needs to be able to occur alongside UK Parliament remaining superior.
Nonetheless, if compatibility can be found between the two systems, the best place to look will be in the Act itself. It is C. A. Gearty’s belief that with the enactment of the Human Rights Act, Parliament intended to retain their supremacy. Which of course makes sense as there is no logical reason why Parliament would knowingly do away with such a valuable power. Through the reading of the Human Rights Act 1998, evidence to support Gearty’s further comments on Parliament including provisions within the Act to retain their supremacy can be found. In investigating the question of compatibility, section 3 of the 1998 Act is highly valuable as it outlines the effect of the Act on existing UK legislation. The inclusion of Sections 3(2)(b) and (c) in the Human Rights Act means that;
“ Under the Act, if Parliament has explicitly and clearly enacted a provision that runs contrary to the Convention, it nevertheless remains fully valid and effective as law.”
Therefore, parliamentary supremacy is upheld, for if an interpretation that follows the Convention is not possible, UK law does not become invalid, it continues and is still followed even though incompatible with Europe.
As essential as s.3 is, it is also important to note the following Section 4, which sets out the procedure for a ‘declaration of incompatibility’. This section further protects the doctrine of parliamentary supremacy as it allows Parliament to retain some of its decision-making powers. When no compatible interpretation can be found under s.3 (1) of the Human Rights Act, the courts can issue it with a declaration of incompatibility that then leaves the legislation in the hands of Parliament, which can then choose for the legislation to remain incompatible but still valid, or could amend the Act to bring it in line with the Convention.
The argument in favour of compatibility and the preservation of parliamentary supremacy can be continued through the case law surrounding the subject. Firstly, in the case of R v A , questions arose over whether Article 6 of the Human Rights Act would be violated if the defence were unable to collect certain evidence. Under the Youth Justice and Criminal Evidence Act 1999; in a rape trial, the complainant cannot be asked any questions about their sexual history, however in this case, the defence argued that their right to a fair trial was jeopardised because of this. It was held that the 1999 Act could only be overruled if the evidence collected by the defence was vital to their case and so preserved the original meaning of the Act. Next, in both; In re S (Minors) and In re W (Minors) ; the Children Act 1989 was subject to interpretation, as such, the court developed a starring system to deal with the problems that had arisen in these cases. However, this starring system was seen as being an action too far from interpretation; Gearty refers to the fact that the Human Rights Act does not allow alterations to legislation to achieve compatibility. R (Alconbury Developments Ltd and Others) and R (Holding and Barnes plc) are two similar cases involving the Transport and Works Act 1992 and the Town and Country Planning Act 1990; both cases involve the question of a violation of part of Article 6(1) concerned with the individual’s civil rights;
“In the determination of his civil rights…everyone is entitled to a fair and public hearing…by an independent and impartial tribunal…”
Objectors claimed a breach of Article 6(1) over the decision of the Secretary of State for the Environment etc to grant planning permission. It was held that Article 6(1) would not be violated if the Secretary of State’s decisions were reviewed by an ‘independent and impartial tribunal’. The third case involves the Highways Act 1980 and Acquisition of Land Act 1981, in this case the Secretary of State was given power to make decisions over something which he had a personal interest in. For this case parliamentary supremacy was upheld by the statement that section 6(2) applied in that the legislation is incompatible with the Human Rights Act but still valid as no other interpretation is available.
The fact that these cases all show the continuation of parliamentary supremacy in varying ways strengthens the argument that parliamentary supremacy still exists and is compatible with the Human Rights Act.
Yet now the other side of the question needs to be considered. Again, the Human Rights Act itself is the prime place to look for evidence of incompatibility. Section 3 can also be used against the argument of compatibility. Section 3 (1) of the Human Rights Act immediately states that;
“So far as is possible to do so…legislation must be…compatible with Convention rights.”
Gearty talks at length about the possible meanings behind the broad term ‘possible’, especially the thought that its meaning could expand outside of what is ‘reasonably possible’ and therefore the risk that;
“…the term should be construed in a way which requires all legislation to be Convention compatible…and that this should be the case whatever kind of linguistic trick might be required in an individual case to achieve such an end-result.”
Despite the allowance of continued validity of incompatible legislation, the practice of interpretation means that the true meaning of legislation is being lost, as the new rule directs the courts to ‘discover’ a meaning purely to fall in line with Europe and the rights laid out in the Human Rights Act 1998. This view has previously been voiced by Lord Steyn, and shows that with interpretation occurring in this way, a court could be attaching meanings to a statute that its writers never intended it to have, but the courts would still follow that version of the legislation merely because it fits in with the Convention. Therefore, in theory, any random, obviously originally unintended interpretation could be attached to any Act.
Section 3 of the Human Rights Act also implies that no future legislation should be passed unless it’s compatible with the Convention. The concept that no Parliament can bind a future one is fundamental to the doctrine of parliamentary supremacy but this provision seems to be working towards stopping this.
On the face of it, the concept of the ‘margin of appreciation’ seems to preserve parliamentary supremacy; at first glance it seems as if a member state’s authorities are able to run that state in their own way, but in reality, the member states have to operate by the European Convention’s rules. A good example is that of the voting system; Parliament sets the actual physical method of how people vote, but it is following European legislation from the Convention through the Human Rights Act, e.g. the 1st Protocol, Article 3 establishes the right to free elections. This concept very much supports the view of the UK Parliament as a puppet with the European Community holding the strings.
Case law relevant to the opposite side of this debate also and R (H) v N & E Mental Health Review Tribunal shows interpretation in line with the Human Rights Act. The Mental Health Act 1983 placed the burden of proof on the patient to show they should no longer be detained within a hospital; this was stated as against Article 5. It was held that the burden of proof should in fact be on the tribunal to prove he still needs to be detained, in order to not constrict the patient’s right to liberty under Article 5.
In conclusion, the answer to the question of compatibility between the Human Rights Act 1998 and the doctrine of Parliamentary supremacy seems to be a mixture of both concepts that have been examined here. It is clear that Parliament has provided itself with several theoretical ‘escape routes’ in which its supremacy is preserved, such as s.3 (2) and s.4 of the Human Rights Act. But it also remains clear that there will forever be conflict between the protection of human rights and the supremacy of Parliament. In practice, by enforcing an Act that sets guidelines for every piece of legislation that Parliament will ever pass in the future, a huge chunk of power is taken away from the UK. This coupled with the European Communities Act 1972 commits the UK Parliament to having to face the fact that European legislation further up the hierarchy than its own domestic legislation, as where there is conflict, European legislation, as enacted through the Human Rights Act, will always have to be chosen.
However, even if it can be said that at present Parliament has lost some of its supremacy, it must be remembered that in theory, Parliament will always be supreme because it has, as stated by Dicey; “…the right to make or unmake any law whatsoever…” , which therefore suggests that the UK always has the power to pass new legislation to change or do away with the Human Rights Act 1998 if it ever chose to, and in the most extreme scenario, the UK could even leave the European Community, and restore Parliament’s total supremacy once more.
Dicey, The Law of the Constitution, pg 39-40.
European Communities Act 1972; s.2 (1).
R v Secretary of State for Transport ex parte Factortame Ltd and Others [1990] 3 WLR 818.
Maastricht Treaty 1992; (amended-formerly Art F(2))Article 6; “The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms…as general principles of Community law.”
For example; Lord Woolf and Lord Steyn.
C.A.Gearty; Reconciling Parliamentary Democracy and Human Rights [2002] LQR. Vol 118; pg 248. “However, it is also clear that it was Parliament’s intention…to preserve Westminster’s sovereign power…[and quoting the Lord Chancellor] to maximise “the protection of human rights” but only insofar as this could be done “without trespassing on Parliamentary sovereignty.””
Current Law Statutes 1998, Vol 3, pg 42-11.
In re S (Minors) (Care Order: Implementation of Care Plan) with In re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 2 AC 291.
R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions with R (Holding and Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.
Human Rights Act 1998; Article 6(1).
Secretary of State for the Environment, Transport and the Regions v Legal and General Assurance Society Ltd [2001] 2 WLR 1389.
Supra n. 12; Section 6(2); “Subsection (1) [public authorities act unlawfully if they violate a Convention right] does not apply if- as a result of one or more provisions of primary legislation, the authority could not have acted differently;”
Lord Steyn, Current Topic: Incorporation and Devolution [1998] E.H.R.L.R. 153, pg 155; “Traditionally the search has been for the one true meaning of a statute. Now the search will be for a possible meaning that would prevent the need for a declaration of incompatibility. The questions will be…can the words be made to yield a sense consistent with Convention rights? In practical effect there will be…favour of an interpretation consistent with Convention rights.”
Example provided by H. Davis; Human Rights and Civil Liberties, pg 32.
R (H) v London North and East Region Mental Health Review Tribunal (Secretary of State for Health intervening) [2002] QB 1.