Evaluate the extent to which the Human Rights Act 1998 is consistent with the traditional understanding of parliamentary sovereignty.

Some have suggested that the reassurances that the sovereignty of Parliament is not affected by the Human Rights Act 1998 are misleading. Lord Steyn declared that

“[i]t is crystal clear that the carefully and subtly drafted Human Rights Act preserves the principle of parliamentary sovereignty”7

Although, in preserving the principle, the Act has made substantial changes to the way in which legislation has effect in respect of human rights8. At the moment, courts appear in some circumstances to treat Human Rights law as a supreme law and perhaps changing the will of Parliament by doing so. The Human Rights Act 1998 brought with it a substantial amount of training for judges on how to incorporate the Act into statutes. A strong interpretative duty is to be applied to all legislation, whether primary or subordinate, whereby, the legislation must be read and given effect in a way which is compatible with convention rights. Due to this emphasis on interpretation, judges may feel obliged to incorporate Human Rights law to an extent where the statute is in some way changed, and hence, changing Parliament’s intention when the statute was written. Furthermore, this has resulted in repeated failures to give sufficient legal protection to individual rights9. The Human Rights Act 1998 appears to have also found a way of ensuring that in relation to convention rights, there will be little space in which the doctrine of implied repeal can be applied (i.e. whereby the later Act of Parliament is followed on the basis that that it is the more recent statement of Parliament’s intentions).

With regards to the enactment of legislation, s19 of the Human Rights Act provides that a minister in charge of a Bill being introduced into Parliament will be required to make a statement of compatibility prior to the Bill’s second reading, indicating how the Bill complies with Convention rights. Thus in effect, this puts restraints on the sovereignty of Parliament, as it requires them to incorporate the Convention rights at the early stage of enacting legislation. However it would be misleading to say that it prevents Parliament from actually enacting legislation, as a statement of non-compliance can be issued which indicates the conflicts between the Bill’s proposals, the European Convention of Human Rights and the reason for no compliance. Nevertheless, an Act of Parliament that carries a declaration of incompatibility (or non-compliance) is likely to be badly wounded and some confusion may arise as a result10. Therefore, s19 and s3 of the Human Rights Act are seen by some as a ‘radical tool’, which to a certain extent undermine the sovereignty of Parliament11. A further consequence of legislation holding non-compliance with convention rights on parliamentary sovereignty, is the possible following of remedial action whereby pressure is enforced on the government which is expected to introduce new legislation or amend the existing in order to make it compatible.

British Courts and the European Convention of Human Rights                                                                                                                                                                            

The European Convention of Human Rights was signed in Rome in 1950 and ratified by the UK in 1951, although it did not come into force among those who had ratified to it until 1953. The convention is a multilateral international treaty and its authority “derives solely from the consent of those states who have become parties to it”12. The convention declared certain rights that should be provided and protected by the law in each state. For the Convention to become part of domestic law in the UK it had to be incorporated into English law by way of the Human Rights Act 1998. However, before the Convention was incorporated, convention rights had been included in proceedings before English courts. Courts had referred to the unincorporated Convention and its case law as sources of principles or standards of public policy, usually in situations whereby common law or statutory law was ambiguous, undeveloped or uncertain13. For example, in the case of Waddington v Milar in 197414, Lord Reid referred to Article 7 of the Convention. However, prior to the Human Rights Act, courts in the UK, could only pay limited attention to the convention and thus it could not be applied directly by the courts to the cases held before them. In Malone v MPC, 197915, Malone sought declarations that tapping of his telephone by the police was unlawful and in breach of his Article 8 rights. Megarry V-C held that the tapping was not unlawful and that the convention was not law in the UK16.

The European Convention of Human Rights was introduced into UK law in the year 2000 via the Human Rights Act 1998. As discussed earlier, the Human Rights Act 1998 incorporated into English law, the rights already afforded to UK citizens under the Convention, with the exception of Article 13. The Act provides that public authorities exercising executive powers must comply with the requirements of the Convention. A vital feature of the Act is the ‘interpretative obligation’ in s.3. The most frequent use of the Act is likely to be an interpretative one17 as the Act requires courts to interpret statutory provisions and common law in a way that is compatible with the Convention. Section 3 (1) of the Act states:

“So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”18.

This will have effect on all cases, “civil or criminal, private or public, against private legal persons or public authorities”19 where a convention right is at stake. Before the Act was introduced, courts were permitted to use the Convention as an interpretative tool where the supposed Act of Parliament was ambiguous. Now, courts under a statutory duty must interpret legislation accordingly with Convention rights, so far as this is possible. The case Regina v A20 provides a good example of the influence of the Human Rights Act 1998 and the use of the interpretative obligation in UK court. The case concerned the legality of a ‘rape shield’ law passed in order to protect alleged victims of rape from having to reveal details of their sexual history in open court. The defendant alleged that the complainant had consented to sexual intercourse during a previous relationship. The ‘rape shield’ under s41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 therefore restricted his defence. The House of Lords was required to consider the extent to which this section of the Act was compatible with the right to a fair trial under Article 6 of the European Convention of Human Rights. Lord Steyn concluded that these provisions did interfere with the right to a fair trial, but opted for a creative interpretation that ensured compatibility with Article 6, so as to allow cross-examination of the complainant about recent intercourse or intimacy between her and the defendant.

There are situations whereby it is impossible to interpret legislation compatibly with Convention rights. This does not however, give courts in the UK the power to strike down or set aside acts of Parliament. The crucial words in the interpretative obligation under s3(1) of the Act are ‘possible’ and ‘must’, suggesting that there is an alternative. The courts are required to interpret legislation so as to uphold the convention rights unless; the legislation itself is so clearly incompatible with the Convention that it is impossible to do so21. Where a higher court such as the House of Lords, Privy Council, Court of Appeal or High Court is satisfied that a provision is incompatible with the European Convention of Human Rights, it may under s4(1) grant a declaration of incompatibility to that effect. Although this declaration of incompatibility may trigger the taking of remedial action by the relevant minister, it will not affect the validity, continuing enforcement of the provision in respect of which it is given, nor is it “binding on the parties to the proceedings in which it is made” (s4(6))22. To date, the courts have exercised the power to issue declarations of incompatibility sparingly. One example is found in Secretary of State for the Environment, Transport and the Regions, ex parte Alconbury Developments Ltd and Others [2001]. In this case, a declaration of incompatibility was granted in respect of the primary planning legislation that allowed a minister to determine the outcome of planning appeals in which he had a policy interest, but this was set aside on appeal to the House of Lords. A declaration of incompatibility is rare, s19 of the Human Rights Act 1998 intended to prevent these instances by enforcing Human Rights law into the enactment of legislation. However, it is important to note that non-compliance can be declared even at this early stage.

Due to a strong interpretative duty under s3 of the Human Rights Act, as discussed earlier, courts are required to interpret legislation compatibly with Convention rights, but are not bound by Convention rights. Courts are not bound nor have the power to disapply Acts of Parliament that are not compatible with the European Convention of Human Rights. What follows from incompatibility with the Convention is more the issue, such as social pressure on Parliament and courts to ensure Human Rights. The effectiveness of the Human Rights Act 1998 rests on a number of foundations, one of which is the willingness of judges to robustly defend rights and to interpret Convention rights in a manner favouring individual protection against government encroachment, and thus judges interpretative duty is very important.

British courts and EU law

The major move towards constitutional change in Britain comes, significantly from Europe. The United Kingdom became a member of the European Communities in 1973 and therefore accepted 43 volumes of legislation and more than 3000 regulations and directives already passed23. Parliamentary sovereignty is one of the main constitutional issues raised by Britain’s membership of the EU. Parliamentary sovereignty has been affected both formally and legally and is no longer one of the cornerstones of the British Constitution. The fact that EU law takes precedence over national law means that while the UK is a member of the Union, Parliament is no longer the supreme law-maker. However, parliament has not lost its legal sovereignty altogether, as some contend that this loss of sovereignty is neither final nor absolute and Parliament could revoke membership of the EU tomorrow, thus regaining its sovereignty and status24.

The implications of European Community membership were shown in a white paper published by the Labour Government in 1967, which formed an important basis for the European Communities Act 1972. This Act gave legal effect within the United Kingdom to those provisions of community law, which were, according to the European Treaties, intended to have direct effect within member states. Section 2(1) of the Act states:

“All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the treaties…are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law and be enforced, allowed and followed accordingly”25.

This provides that Community law had direct effect and it shall be enforceable in the UK courts. This immediately raises the problem of potential conflict between EC law and a UK Act of Parliament. By the doctrine of implied repeal, all Acts before 1972 would be overridden by the European Communities Act and the EC would have supremacy. There is however, nothing in the European Communities Act 1972 which represents an attempt to entrench its provisions, or that it is a ‘higher form of law’, or that it cannot be repealed 26, perhaps because of the fears of the reactions it would receive.

 The Act provides guidance for judges in the United Kingdom when approaching conflicts between European Community law and parliamentary legislation. Several sections of the Act imply that EC law is to prevail over any subsequently enacted UK law. Section 2(4) of the Act provides that subsequent legislation is to be construed and to have effect subject to the foregoing provisions of section 2. Section 3 of the Act requires courts, when dealing with cases regarding Community law, to either refer to the European Court of Justice or deal with the case themselves in the light of previous decisions made by the European Court. In the case of conflict, the European Court of Justice in Luxembourg has the final word and provides precedence. The present position would appear to be therefore that the courts remain loyal to Parliament at Westminster by giving effect to EC law when interpreting domestic law, because it is what Parliament has instructed the courts to do by virtue of the European Communities Act 1972.

For the first decade after passing the European Communities Act, the courts vacillitated between mutually conflicting positions, for example in Feliixstowe Dock and Railway Co v British Transport Docks Board27. In this case Lord Denning claimed that once a Bill

“‘is passed by Parliament and becomes a statute, that will dispose of all discussion about the treaty. These courts will then have to abide by the statute without regard to the treaty al all’”28.

However Lord Denning did change his mind in the following years, viewing EU law to hold precedence over UK law. The extent to which Community law overrides inconsistent national law was seen in R v Secretary of State for Transport, ex parte Factortame Ltd and Others29. The case involved a conflict between Community law and the Merchant Shipping Act 1988 passed by Westminster Parliament, which sought to prevent non-British interests from having access to British fishing quota. The background of the case lay in the fact that Spanish and other foreign fishing interests had formed companies registered in the United Kingdom in order to benefit from the European Communities fishing quota, allocated to the United Kingdom. The central issue of the case was whether English Courts could grant interim relief to fishing-boat owners against the British Government while the case was being referred to the European Court of Justice. In effect the applicants were asking if the Merchant Shipping Act 1988 could be disapplied by the English Courts, which the divisional court granted30. On appeal, both the House of Lords and Court of Appeal held that the divisional court had no power under the English law to make such an interim order31.  The European Court alleged that the United Kingdom had failed to observe the European Community treaty obligations by imposing the nationality requirement for registration. It held that the United Kingdom must suspend the nationality requirements contained in the Merchant Shipping Act 1988, and the United Kingdom duly complied with this decision.

Conclusion

Although there appear to be conflicting ideas from the European and British courts, as we have seen, Britain is now unable to escape the need to consider the practices and values of Europe in certain situations. The gap between Britain and Europe is now narrowing with the introduction of legislation such as the European Communities Act, as discussed earlier. Politicians and lawyers alike visit this issue on a daily basis. One of the main Constitutional issues arising from Britain’s membership of the EU is that of the sovereignty of Parliament. To say that the existence of such a constraint is an infringement is to a certain extent just not true. Some suggest that Parliament’s authority to legislate is no more fettered by the treaty than it is fettered by other political decisions that may be taken by the Cabinet32. Moreover, Parliament enacted the Act; therefore surely the will of Parliament is being followed.

Bibliography

Allen, M. and Thompson, B., (2002) Cases & Materials on Constitutional & Administrative Law, 7th Edition, New York: Oxford University Press

A W Bradley and K D Ewing, (2003) Constitutional and Administrative Law, 13th Edition, Essex:Pearson Education Limited

Barendt, E., (1998) An Introduction to Constitutional Law, New York: Oxford University Press Inc

Barnett, H., (1998) Constitutional and Administrative Law, 2nd Edition, London: Cavendish Publishing Ltd

Budge, I., Crewe, I., McKay, D. and Newton, K., (1998) ‘The core executive: Prime Minister and Cabinet’, The new British Politics, Essex:Addison Wesley Longman, pps 200-223

Cocker, P., (1994) Essential Topics in Modern British Politics and Government, London:Tudor Business Publishing Limited

Harris, P., (2002) An Introduction to Law, 6th Edition, London: Butterworths

Jowell, J. and Oliver, D., (2000) The Changing Constitution, 4th Edition, New York: Oxford University Press

M T Molan, (2003) Training in Law, Bedford: ILEX Tutorial College Ltd

Pollard, D., Parpworth, N. and Hughes, D., (2001), Constitutional and Administrative law text with material, London: Butterworths

Wadham, J. and Mountfield, H., (1999), Blackstone’s Guide to the Human Rights Act 1998, London: Blackstone Press Ltd

Wilson, D. and Game, C., (1998) Local Government in the United Kingdom, 2nd Edition, London: Macmillan Press Ltd

---