Jack Straw, at the Bill’s second reading in the Commons, propounded that “what the HRA makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act that it has passed, but which is incompatible with the Convention in the eyes of a British court, it is that Act which will remain in force” (House of Commons Debate, 1998). Lord Woolf (2002) recognised that the HRA was criticised due to the suggestion that it interferes with the sovereignty of Parliament. But he commended the skilful way in which it has been crafted, for “it provides very substantial protection for human rights without undermining those fundamental constitutional principles”.
However, Bradley (2004) argued that the Act has “enabled there to be judicial review of legislation in all but name” by providing courts with a dual function to apply the rule of interpretation and, failing that, to make a declaration of incompatibility. Kingland (2000) was concerned that under the Act, UK judges aren’t affected by the jurisprudence of the ECtHR, but rather they need only have regard to it. He suggested that it might have been better if the government had simply produced a domestic Bill of Rights.
Lord Irvine (1999) held that, because the HRA takes an interpretative approach to fundamental rights, it is compatible with Parliamentary sovereignty. But Campbell (2001) disagreed, arguing that despite its complex balancing act, the HRA exudes it severely diminishes the effect authority of elected representatives. He saw the interpretation requirement of courts as having the capacity to bring about full incorporation of the ECHR to the point where courts are in practice able to overturn legislation that they deem to be in violation of their reading of the ECHR.
The Act has been applauded as a much overdue constitutional innovation (Greer, 1999) but its impact falls short of triggering a constitutional revolution in the sense of placing judicially enforceable ‘higher law’ constraints on Parliament’s legislative power (Loveland, 2003). The statement in discussion expresses that in practice the effect of the HRA has been to erode Parliamentary sovereignty to almost nothing; but the reality is more nebulous.
Section 3(1) places an express statutory duty on courts to strive to interpret and give effect to legislation in a way which is compatible with Convention rights (as defined in section 1(1)), “so far as it is possible to do so” (Wadham & Mountfield, 1999). In order to minimise the tension between protecting fundamental rights and the maintenance of Parliament’s legislative sovereignty, subsections (b) and (c) accord no power to strike down or disapply legislation which is found to be incompatible with Convention rights (Feldman, 1999).The constitutional significance of section 3 depends in large part on the meaning which courts attach to the idea of “possible”.
Narrowly construed, this phrase is thought to reject literalist approaches to statutory interpretation, if such approaches would produce results incompatible with Convention rights, and to adopt instead other established techniques, such as the golden rule or mischief rule, if those techniques would produce a Convention-compatible outcome (Loveland, 2003).
More broadly construed, section 3 might be taken as requiring courts to embrace a teleological or purposive approach to interpretation in the sense advocated by Lord Denning in Magor and St Mellens RDC v Newport Corporation [1950] 2 All ER 1226, if use of any of the established techniques would render a statutory term consistent with the requirements of Convention rights (Loveland, 2003).
If afforded a broad meaning, section 3 could be seen as authorising domestic courts to adopt the type of interpretative techniques proposed by the ECJ in Marleasing SA v La Comercial Internacional de Alimentacion SA Case C-106/89 [1990] ECR I-4135. Notably, the phrase “so far as it is possible to do so” in section 3 is an almost verbatim echo of the ECH formula concerning the scope of domestic courts’ interpretative autonomy in Marleasing (Loveland, 2003).
Prior to the enactment of the HRA, the courts employed broad, unorthodox interpretative methods in order to protect human rights, as in the case of R v Secretary of State for the Home Department, ex parte Leech [1994] QB 198. So section 3 may be construed as requiring all domestic courts in all cases to use imaginative and expansive interpretative methods, for there is no reason why the courts should stop employing unorthodox interpretative methods to safeguard human rights (Loveland, 2003).
Section 3 can be a radical tool, as demonstrated in the cases of R v Offen and others [2001] 2 All ER 154 and R v A [2001] 3 All ER 1. The interpretive duty and power conferred on the judiciary run counter to Dicey’s (1959, p.39) assertion that “all that a court of law may do with an Act of Parliament is apply it” (Lord Bingham, 2002). Campbell (2001) saw the interpretation requirement as encouraging the courts to view legislation on the basis that Parliament intends to legislate in a manner which is compatible with the ECHR.
There was considerable debate over quite what the government intended section 3 to do, and what the courts would make of it. Marshall (1998) suggested that section 3 was “a deeply mysterious provision” (p.169). Loveland (2003) concluded that the real question raised by section 3 was not whether it required courts to make a radical break from orthodox interpretative principles, but to what extent it required them to do so. If one takes the view that orthodox notions of Parliamentary sovereignty hinge upon the presumption that courts will generally adopt a literalist approach to statutory interpretation, section 3 does, in effect, impact on Parliament’s sovereignty, but not drastically (Loveland, 2003).
Although the HRA does not empower courts to question the legality of primary legislation, it does offer the opportunity to challenge a statute’s legitimacy through section 4’s device – the declaration of incompatibility. This novel remedy applies where a court cannot interpret a statutory provision in a way which is compatible with a Convention right. Section 4 ingeniously empowers judges to openly express their loyalty to the values laid out in the Convention while simultaneously avoiding any covert undermining of Parliament’s intentions (Loveland, 2003).
Lord Irvine (2003) praised section 4(6) for expressly protecting Parliamentary sovereignty – Parliament is under no legal obligation to amend incompatible legislation, and a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision”. If it so wishes, Parliament may amend the offending legislation under section 10 of Schedule 2, which, in a sense, achieves an equilibrium between having regard for the ECHR and maintaining Parliament’s legislative supremacy. But Lord Irvine (2003) asserted that the declaration mechanism dramatically reduces Parliament’s ability to legislate incompatibly with Convention rights because a declaration serves as a political and moral disincentive to legislate incompatibly. Ordinarily, the interpretative obligation of section 3 will enable the court to avoid invoking the declaration mechanism (Turpin, 2003).
As a result of section 4, Parliament’s competence to enact any law is unimpaired, although a powerful restraint has been imposed upon its freedom to interfere with fundamental rights (Turpin, 2002). But the capacity of courts to issue a declaration of incompatibility alters the allocation of powers, albeit subtly – Parliament has invited judges to tell it that it has acted wrongly by legislating incompatibly with a Convention right. Yet because neither House of Parliament is a public authority under section 6(3), it is not unlawful for Parliament to act in a way which is incompatible with a Convention right or to fail to rectify a violation of such a right (Feldman, 1999).
Declarations of incompatibility have been made since the HRA’s enactment (R v London North and East Region Mental Health Review Tribunal [2002] QB 1), but some judges are freer in their interpretative approaches. Lord Steyn observed that Parliament had specifically rejected the legislative model of requiring “reasonable” interpretation and expressed that a declaration of incompatibility under section 4 is only a measure of last resort (p.17). This echoes the Lord Chancellor’s words during the Bill’s committee stage; “We want the courts to strive to find an interpretation… that is consistent... and only in the last resort to conclude that legislation is simply inconsistent” (HCD, 1997, col.535).
Similarly, in R v Lambert [2001] UKHL 37, section 28 of the Misuse of Drugs Act 1971 conflicted with Article 6(2), and the conflicting phrase was afforded a broad interpretation (Alder, 2005). In Ghaidan v Godin-Mendoza [2004] 2 WLR 478, a majority in the House of Lords held that a homosexual relationship fell within the phrase “living as husband and wife”, inserting the words “if they were” after “as”. The House held that even if the ordinary meaning of the statute is clear, the court could still achieve a meaning that complied with the Convention (Alder, 2005).
Greer (1999) has criticised section 4 for giving the judiciary the power to issue declarations of incompatibility which, if Parliament fails to correct, will ultimately be open to challenge before the ECtHR. He added that this would entail the Strasbourg “taking back” the rights concerned to Strasbourg for final adjudication, which runs counter to the whole rationale for the Act, as articulated by the White Paper.
Section 19 can be seen as an inducement for government and Parliament to respect the Convention rights. It requires a minister responsible for a Bill to issue a statement that it is compatible with Convention rights, thereby ensuring that Parliament retains the burden of responsibility for securing respect for Convention rights (Greer, 1999). But section 19 statements do not bind courts to conclude that the legislation concerned is compatible. Where legislation is incompatible with Convention rights, the government may still proceed to implement it, which affirms the positive limb of Dicey’s theory of Parliamentary sovereignty – Parliament retains the right to make any law whatsoever.
The doctrine of implied repeal is a necessary aspect of Parliamentary sovereignty which prevents Parliament from legislating in a way that binds its successors. Drafters of the HRA were concerned to circumvent the operation of the doctrine of implied repeal for constitutional reasons (Grosz et al, 2000). The Lord Chancellor stated that the Government did “not wish to incorporate the Convention rights, and then, in reliance on the doctrine of implied repeal, allow the courts to strike down Acts of Parliament” (HCD, 1997, col.522). Post-HRA, even if an earlier statute infringes a Convention right and cannot be interpreted compatibly, it remains in force but subject to a declaration of incompatibility (sections 3(2)b and 4(6)). This solution “gives further effect” to Convention rights rather than incorporating them (Grosz et al, 2000). But it runs contrary to the doctrine of implied repeal, and as a result, to the doctrine of Parliamentary sovereignty (Charania-Boutia, 1996). Bradley (2003) supports this proposition and asserts that the HRA appears to have found a way of ensuring that in relation to Convention rights, there will be “little space in which the doctrine can be applied” (p.59).
Strictly speaking, section 3 does not threaten Parliamentary sovereignty because Parliament itself has decreed that judges should behave in accordance with section 3. It simply imposes an additional burden on drafters of legislation intended to be incompatible with a Convention right to make their intention absolutely clear and unequivocal (Feldman, 1999).
With regards to declarations of incompatibility, the frequency of its invocation is likely to be inversely proportional to how broadly courts construe their powers under section 3. The more expansive the courts’ interpretive power, the less likely it would be that a particular statutory provision could not be reconciled with a Convention right (Loveland, 2003).
What the courts have yet to do is to develop clear principles to demarcate between section 3 compatibility and section 4 incompatibility (Klug & Starmer, 2001) It is not entirely clear why section 3 was used in Offen to redefine words, but not in R v Mental Health Review Tribunal to re-reverse the burden of proof, particularly if, as Lord Steyn suggested, an express or implied contradiction is needed before the courts decide that it is not possible to interpret legislation compatibly with Convention rights (Klug, 1999). The effect of the declaration mechanism is political rather than legal, in that Parliament is invited to revisit it statute book, and if so wished, to amend or repeal legislation in light of a declaration having been granted (Tomkins, 2003). Parliament continues to have supreme legislative authority because it may legislate in contravention of Convention rights, if it wishes so.
In conclusion, although there is evidence that the Act “further erodes the already thread-bare doctrine of Parliamentary sovereignty” (Greer, 1999, p.20), the HRA has left Parliament’s legislative supremacy mostly intact in comparison with the European Communities Act 1972, which had a far more damaging effect. Ewing (1999) also supports the view that Parliamentary sovereignty has been preserved by the HRA: “the inevitable incorporation of the Convention has been secured in a manner which subordinates Convention rights to constitutional principle and democratic tradition” (p.91).
The Human Rights Act appears to have been successfully implemented and has engendered a stronger human rights culture in the courts (Elliot & Quinn, 2005). It has achieved its desired balance by retaining Parliament’s legal right to enact legislation which is incompatible with Convention rights. Of course, the HRA may be repealed, but the Act may come to acquire a ‘moral entrenchment’ so that repeal would become politically inconceivable, while still legally possible (Phillipson, 2003).
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