Have the courts helped the Human Rights Act achieve its objectives?

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The courts are central to the success of the Human Rights Act’s (HRA) objectives: “Parliament has entrusted to the courts the duty to stand guard over the irreducible and universal human rights contained in the ECHR. It is therefore the duty of the courts to define the contours of our rights-based democracy.”  Judges are required to make their judgements amidst political controversy, whilst keeping in mind that the democratically elected Parliament is supreme. This renders the task of helping the Human Rights Act achieve its objectives illuminating. There have been many criticisms of the courts approach to the HRA, as Bradley has found. Within this controversial area, I shall critically consider whether the courts have helped the HRA achieve its objectives.

The HRA makes most of the rights in the European Convention on Human Rights  (ECHR) enforceable at a domestic level.  The objectives of the HRA were to “bring rights home” by giving further effect to convention rights, making them more accessible to UK citizens, and increasing their enforceability.  These objectives are achieved in two main ways: Firstly, by creating a new rule of statutory interpretation (section 3) and secondly, ensuring that public bodies act compatibly with the convention rights (section 6). These two sections are fundamental to the success of the HRA, therefore, they will be the basis for this paper. Through examining the relevant case law; it can be seen whether the courts have helped the HRA achieve its objectives, or if they have placed obstacles in its path.

Section 3 creates a new rule of statutory interpretation; statute law has to be interpreted “so far as it is possible compatibly with convention rights. Lord Woolf explains:”It is as though legislation which predates the HRA and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3.”  This is a considerable power on the courts in relation to developing the law as they can edit legislation. If there is legislation that cannot be interpreted in line with convention rights, the courts can either strike down that statutory provision (if its secondary or delegated legislation) or  they can issue a declaration of incompatibility (if its primary legislation). R v Lambert illustrates the use of section 3. Here, the House of Lords (HoL) used its power under section 3 to change the meaning of section 28 of the Misuse of Drugs Act 1971, thereby reducing the obligation on the defendant in order to comply with article 6 of the ECHR.

The difficulty arises in respect of the extent of the power, how far can the courts go when interpreting statute law? There are three significant cases on this issue. R v A concerned section 41 of the Youth Justice and Criminal Evidence Act (YJCEA). Section 41 bans the defence in a rape case from cross examining the victim on her sexual past unless the case falls under an exception, however the case in question did not meet the exception requirements so the ban stayed in place. The HoL accepted that in some cases section 4 might be inconsistent with the right to fair trial, because of this, they used their power under section 3 of the HRA to read in a limitation on the section 41 ban, thus allowing cross examination. This radical decision undermines section 41 of the YJCEA. I believe that the HoL should have issued a declaration of incompatibility rather than undermining the act. However, Kavanagh argues that the statutory interpretation was correct:

The decision in A allowed trial judges to admit truly relevant sexual history evidence between complainant and defendant which were necessary for the defendant to receive a fair trial. In so doing, it preserves some of the valuable restrictions on the use of sexual history evidence contained in s.41, whilst simultaneously protecting the right to a fair trial under Art.6 ECHR”

I disagree; the act was a clear policy decided by our democratically elected Parliament; therefore this clearly conflicts with the objectives of the Human Rights Act. Gearty agrees, commenting that it was “judicial override”.

In subsequent cases, the courts have been less radical. R v S involved the Children Act, the Court of Appeal (CoA) were concerned that once a court has made a care order, the court cannot subsequently intervene in that child’s welfare, thus potentially breaching article 8 of the ECHR. The CoA used its section 3 power to read a provision into the Children Act requiring local authorities to come back to court and report on the progress of care. This radical decision was overturned by the HoL, Lord Nicholls explained: “A meaning which departs substantially from a fundamental feature of an act of Parliament is likely to have crossed the boundary between interpretation and amendment.” Lord Nicholls is effectively drawing a line between interpretation and amendment, ensuring that the courts realise that section 3 only gives a power of interpretation. This was repeated in Ghaidan v Godin-Mendoza  where Lord Nicholls stated “The meaning imported by the application of section 3 must be compatible with the underlying thrust of the legislation being construed.” Again this reinforces the fact that Parliaments intention is supreme. Applying this to the judgement in R v A, it furthers my argument that the HoL were wrong. It is very difficult to distinguish between interpretation and what is an unacceptable development of the law. The case law illustrates that the courts have struggled, and they will continue to struggle when using the section 3 power in future. Re S and Ghaidan clarify that courts should not use their section 3 power to fundamentally change an act of Parliament. Lord Lester believes that the courts are correct in their interpretation and application of the ECHR. An interesting perspective is that Parliament gave the judges the section 3 power to change the law, therefore judges could argue that they are upholding Parliaments will.

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Regarding statutory interpretation, at first, it seemed the courts were steering away from the objectives of the HRA in the judgement of R v A. However the subsequent cases illustrate that the courts are now heading in the right direction, assisting the will of Parliament and the objectives of the HRA.

Section 6 of the HRA is a key provision, and in order for the courts to help the HRA achieve its objectives, section 6 needs to be very effective. Section 6 makes it unlawful for ‘public-authorities’ to act in a manner which is inconsistent with the convention rights. Section 6 tells us ...

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