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  • Level: GCSE
  • Subject: Law
  • Word count: 3233

To what extent has the Human Rights Act 1998 strengthened the rule of law in the UK constitution

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To what extent has the Human Rights Act 1998 strengthened the rule of law in the UK constitution? The Human Rights Act 1998 (HRA), an Act introduced to give effect to rights from the European Convention on Human Rights (ECHR) in domestic legislation. Its introduction has affected many legal areas; especially the conceptions of the rule of law and their place in the UK constitution. To understand the effect of the HRA, it is first necessary to establish the initial status of these two concepts. Having established this, the extent of the impact of the HRA can be examined. Rule of law and HRA The concept of the rule of law has traditionally attracted two different interpretations.1 In terms of the impact of the HRA, each interpretation, namely formal and substantive, invoke different outcomes concerning their consequent effect upon the UK constitution. The formal approach adopted most prominently by Dicey, holds the fundamental tenet, 'those who make and enforce the law are themselves bound to adhere to it'.2 It is less concerned with the actual content or 'justness' of the laws themselves, but more in ensuring that there is equal subjection of all citizens under the given system. This positivist ideology separates the question of what law is, and what it ought to be.3 Raz went onto add that laws created under the standard of the formal interpretation should be capable of acting as a guide to an individual's conduct. ...read more.


The positive limb asserts that it is Parliament, and it alone, that makes or unmakes any law. The negative alternative states that the authority of law made by Parliament cannot be questioned by any British court (whose remit is to give effect to said law). Yet increasingly, the foundations on which this argument has been built are being tested. The recent cases of A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent) and X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), 16 relating to the detention without trial of foreign suspects at HMS Belmarsh Prison, call into question the continuing validity of the positive/ negative limb theory. This case raised the issue of the conflict of roles for the House of Lords. It is of course the second chamber of Parliament, involved in the creation of law. But it also has a further role as the final court of appeal for civil cases in the United Kingdom.17 In this case the House of Lords, in its capacity as the highest court, took the decision to declare actions taken by the Home Secretary as being in incompatible with the ECHR. This decision was qualified on the basis of Section 4 of the HRA, which permits the judiciary to declare domestic statute incompatible with the ECHR. Lord Bingham - a senior law lord - said the rules were incompatible as they allowed detentions "in a way that ...read more.


that of judicial remedies (Section 10). In adopting this reasoning the substantive theory of the rule of law is enhanced, since the HRA makes a direct impact upon what is contained in primary legislation and what it should achieve. Since the process is dependant finally on the actions of Parliament to remedy the law, it maintains the appearance of parliamentary sovereignty too. The European Court of Human Rights (ECtHR) has also adopted a 'margin of appreciation' as to how domestic courts in different Signatory States wish to give effect to the ECHR. UK courts are not approaching the issue of respecting the ECHR by merely asking whether a decision reached was one to which the decision maker could reasonably come (a formal approach). But as per, R. (Daly) v Secretary of State for the Home Department,30 the court concerns itself with the question of the pressing social need justifying any decision and whether the response is proportionate to the legitimate aim that is being pursued.31 The extent to which the rule of law has been strengthened depends largely on the interpretation to which one subscribes In absolute response to the question, the HRA has strengthened the rule of law in the UK constitution to a great extent in some instances, and not as greatly on others. But a more subjective response depends on which interpretation of the rule is pursued. Each of them has been challenged in a particular way, but how important this is depends on how one values the ways in which they were strengthened. ...read more.

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