2- The pressure from the growth of importance of human rights in other states, the increasing awareness of socialist and utilitarian standpoints and the Petition of Rights against state interference of individual liberty all pointed towards reform of the HR.
Of course a brief mention should be made that not all acts passed by parliament eroded civil liberties. Examples such as the Freedom of Information Act 2000 or Representation of the People Act 1983 and even cases such as Beatty v Gillbanks or DPP v Jones showed show some sense of increasing human rights. But fundamentally these were not enough and hence the introduction of the HRA 1998.
Section 2 of the HRA allows for the convention rights to be enforced in Britain. This appears to be done indirectly as s.2(1) requires courts to take into account all the decisions of the ECHR and opinions of the Commission of Human Rights, and then if the court views the ECHR’s decisions as relevant the courts are to take those views into consideration. Therefore this has the positive effect of preventing courts to make individualistic interpretation of the meaning of convention rights as now there is guidance from European case law. However, one must bear in mind that the courts are not to incorporate the whole of the ECHR nor are the courts bound by all the decisions of the ECHR.
Another question that arises from the notion that convention rights are merely given to this is that what outcome would the Convention have if a right granted under it came into conflict with clear an d precise words of an Act of Parliament. This is a clear test of parliamentary sovereignty since under doctrine of Parliamentary supremacy Acts of Parliament should take precedence over Convention rights. This puts a damper upon the effectiveness of the HRA since even if Convention rights were enacted and enforced, due to the doctrine of parliamentary supremacy later Acts of Parliament could repeal the convention. Therefore this contradiction was answered through Section 3 of the HRA, which placed a duty upon courts to read legislation so far as it is possible to do so, so as to be in line with convention rights and consequently enhance individual rights. However, whilst s.3 does appear to resolve this particular problem of excessive parliamentary sovereignty, there appears to be a major flaw in the sense that the courts are now given considerable or excessive power of interpretation or discretion in interpreting cases so as to be in line with convention rights. An example of this is in R v Offen whereby the Crime Sentence Act 1977 required courts to provide life sentences and with no discretion. However, this sentence could be altered if in ‘exceptional’ circumstances. But this poses the problem of what constitutes exceptional circumstance. Therefore it was left to the courts to interpret the meaning and therefore they used the HRA Art.3 ‘inhumane and degrading treatment’ and Art. 5 ‘guarantees of liberties and security of persons’ in order to interpret the term ‘exceptional’ circumstances.
Another example of this is in Mendoza v Ghaidan whereby words are read into the statute in question by conferring benefits to homosexual couples as well as heterosexual couples. Is this undermining the statute passed by parliament? A
A good way to view section 3 of the HRA is to view the section as a balancing scale with the court’s powers of interpreting individual rights on one side and parliamentary sovereignty on the other. Hence, as the un-elected courts strong interpretative duty rises, it tips the balances so as to be at the expense of the sovereignty of an elected parliament.
However, within section 3’s three stage process there is a final stage which involves section 4 which allows the courts to make a ‘declaration of incompatibility’ which renders the act incompatible with the convention but at the same time applying the Act in its original form. R v Home Secretary (ex. P. Anderson) was an example of this. From this case some suggest this has reflected a balance between parliamentary sovereignty and individual rights. Since if a statute or act by parliament is so clear and can not be interpreted in a way that doesn’t breach Convention rights, power shifts to parliament and not with the courts. However, one must put this in relative terms and realize that 1- the individual who obtained issue of declaration could go to Strasbourg for a ruling 2- if parliament do issue this declaration they are expected to produce primary legislation to remove incompatibility.
The HMA also requires a statement of compatibility under S.19, which require that before proceeding with a Bill, Ministers have to check whether it is compatible with the Convention. If the minister can not do this they have to say he is unable to do so, and only then can parliament choose to deliberately legislate contrary to the HMA. In this sense this does pose more barriers for parliamentary supremacy and no longer can especially government pass any bill they so desire unless compatible with rights.
A final crucial area of the HRA is Section 6. It makes it unlawful for public authorities including governmental departments, local government and courts to act in a way which is incompatible with convention rights unless primary legislation permits other cause of action. It must be noted briefly that R v Panel on Takeovers and Merger ex p Datafin was used to defined a public body as an act carried out in a public nature.
This section is an example of how parliament are excluded from exemption of
should courts have power to set aside primary legislation.
Another issue is the absence of Article 13, i.e. the entitlement of an effective remedy if their rights were breached; since according to the government this article was unnecessary due to the British court’s system adequacy in providing for remedies such as judicial review. However from Khan v United Kingdom, The Times, 23 May 2000, the European Court of Human Rights criticized the police complaints procedure as the police shouldn’t investigate complaints against themselves. This case illustrates that possibly the government left out Art. 13 in the fear that there would be challenges to the less than satisfactory remedies provided by the British legal system.
