The Human Rights Act 1998 (HRA) incorporates the rights enshrined in the European Convention of Human Rights (ECHR) into domestic law and represents a fundamental change in the protection of rights.

A cornerstone of Parliamentary Sovereignty is that no future Parliament can be bound by a predecessor or bind a future Parliament; in the UK constitution law cannot be entrenched. However, the HRA introduces safeguards for the right of people with regards to subsequent legislation, as s19 requires a minister, who is sponsoring a bill through Parliament, must pledge publicly either that the bills provisions are compatible with convention rights, or if a statement cannot be made, the government, nethertheless wishes to proceed with the bill. Hence it could be said that legislation enacted by one Parliament appears to be binding on subsequent Parliaments.

The lynchpin of the HRA is section 3, which has significant effects on both Parliamentary supremacy and the judge’s role.  Section 3 requires the court to interpret primary and secondary legislation in a way which is compatible with convention rights “as far as it is possible to do so”.   This in effect is a new rule of construction which applies if the court has decided there would otherwise be a breach and the duty operates where the construction in favour of a convention right may not be the most obvious or the most reasonable interpretation. Section 3 goes further than requiring the court to “take account” of the convention; the courts have a “duty” to strive to find a possible interpretation compatible with convention rights.  The interpretation used employs the concepts of proportionality and necessity which means that once the court has decided that the provision interferes with a convention right, the means used to impair the right for freedom must be no more then necessary to accomplish the objective. Thus the judges have to interpret legislation in a manner, which may or may not be in accordance with the will of Parliament when the legislation was originally enacted.  This is an antithesis of Dicey’s basic rule of Parliamentary sovereignty whereby Parliament is the supreme law making body and construction should reflect the will of Parliament.  Section 3 has been said by some to be a radical tool but others to contain a power which is a significant limitation of Parliamentary Sovereignty;  the HRA, at least requires the courts to adopt an interpretation which “may appear linguistically strained”, at most, amounts to the redrafting of statute.

Where it is impossible to interpret legislation in a manner which is consistent with the convention, the High Court and superior courts, may issue a declaration of incompatibility (s.4).  To preserve Parliamentary sovereignty, courts are not permitted to strike down a statute which offends the principles of ECHR.  However, this is a measure “of last resort” which “must be avoided” unless it is plainly impossible to do so. This would appear to be pushing the courts powers of interpretation to the perimeters of their boundaries and judges may in fact be legislating.   In R v A [2000], Lord Hope stated that the law lords decision turned the will of Parliament “on its head”, when the alleged rapist was allowed to tell the jury that he and his accuser had sex before the incident she complained of, despite s41 of the Youth Justice and Criminal Evidence Act 1999 which precludes examination of a claimant’s previous sexual history. This was not interpretation of the will of Parliament but an example of the   courts making the law to ensure compatibility of HRA, apparently at all costs.  

 

When a declaration of incompatibility is made, government and Parliament have to decide whether to amend the legislation, although the act will remain in force until such amendment is made. This is to ensure consistency with Parliamentary Sovereignty, however, this may lead to confusion and uncertainty in law as any act blighted by a declaration of incompatibility, will mean difficulty for any public authority to apply that act.  Furthermore the individual and other persons affected by the declaration of incompatibility may be encouraged to apply to Strasbourg for a ruling on the matter.  Hence it is conceivable that the validity of Parliamentary enactments may be   questioned or put aside, impacting on the supremacy of Parliament.  Certainly, individuals have been allowed to petition Strasbourg since 1966, but the HRA enables those rights to be enforced in the British courts, adding impetus for the questioning of British law.

If the legislation is to be amended, it may lead to a new fast track form of action whereby the offending legislation is subjected to a remedial order.  The Act empowers the minister concerned, if there is compelling reason for doing so, to make a remedial order to remove the incompatibility.  The order is laid before Parliament for 60 days and representations may be made to the minister either by Parliament or any other person.  This is similar to the process to enact secondary legislation, however, there will not be a parent act, authorised by Parliament, setting out the powers under the act.  This may suggest that legislation can be passed which effectively may bypass the Queen in Parliament, which is alien to both the Doctrine of Parliamentary Sovereignty and the concept of separation of powers, where for the sake of democracy the legislature, executive and judiciary must be kept separate.  At worst, a constitutional pessimist could maintain that the executive was now making legislation and not Parliament; at best a more “reasonable man” could suggest that the executive is becoming too powerful.

In the foregoing, it has been highlighted that the role of judiciary has been changed in light of HRA.  Judges no longer merely interpret the legislation; HRA has given the judiciary a mandate to legislate. Traditionally, judges have shown a willingness to legislate, often where moral or ethical issues were involved or where Parliament has been slow to react to anomalies in the law.  However, the real implication is that an appointed body, not an elected body, is making law in the UK, and directed to perform this function under statute.  It can be deduced that s.3 and s.4 HRA gives wide ranging power to the courts, and that increasing power may ignite conflict between the judiciary and the executive.  Tension between the two camps is not new, but the HRA, by enlarging the scope for interpretation of legislation, may have acted as a catalyst for increased conflict.  In 2001, Blunkett in relation to counter terrorist measures warned the judiciary that “it is the elected representatives who are held to account, and it is they who should be the protectors of our rights.” Beloff described the judiciary as the third branch of government, who had breached the sovereignty of Parliament.  However, the HRA has given wider power to the judiciary, to amend law, without the input of Parliament.  The tension between the executive and the judiciary appears to have reached the summit when the government has threatened to legislate to limit the judge’s role in interpretating international human rights legislation.  The judiciary must be independent to ensure cases against the executive are impartially dealt with and the public must have faith in the legal system.  No-one, including government ministers, are or should be, above the law.

Independence and policitical neutrality of the judges is enabled by a combination of law, practices and conventions.  Griffin concludes, however, that this a myth, and the judiciary has always supported the “conventional, established and settled interests”.  The unexpected result of the recent Hutton inquiry may support this view, although in terms of HRA, the courts have taken their responsibilities seriously and given a wide interpretation of the act.

The HRA has also impacted on the common law, which has been developed consistently with convention rights.  Traditionally, under common law, there was no right to privacy; rights only developed from a relationship of confidence and breach of confidentiality.  In Venables [2001], an injunction was granted which amounts to an unprecedented lifetime safeguard to prevent the media from revealing the identity and whereabouts of the two boys who murdered a toddler.  Although the defendant newspaper was not within the definition of public authorities, under the act, Butler Sloss LJ asserted that the court as a public authority must act compatibility with the convention.  Hence, the HRA is extending the common law, particularly in relation to privacy but conversely, may be retracting the right to free speech.

The HRA has also had an influence on the Doctrine of Precedent, which is a unique feature of the Common Law and means that once a principle of law has been decided, it must be followed in subsequent cases.  The HRA is a primary source of law and must take precedence; the courts are now entitled to refuse to follow previous decisions and otherwise binding decisions. This strikes at the heart of the British legal system and may give rise to uncertainty in law, with the resultant reduction of public confidence.

Leading protagonists of the HRA, heralded its’ arrival as a major advance in human rights, with minimal influence on the constitution.  The act attempts to disguise its interference with basic constitutional principles, such as the supremacy of Parliament, however, there can be no escape from the consequences of the act.  Judges, an unelected, appointed body, now have the official mandate to legislate, without the need for the Queen in Parliament; stares decisis appears no longer to be sacrosanct.  Jack Straw maintained that the HRA would strengthen government and democracy; certainly the power of government has been increased, but unfortunately, not democracy.

BIBLIOGRAPHY

A Lester [1984] PL 46

A W Bradley, KW Ewing 13th Ed. Longman. Pearson Education

Allan, Constitutional Justice  2001 Oxford University Press

Anthony Lester. “Don’t blame the judges” The Guardian February 25 2003

Blackstones Guide to the Human Rights Act 1998. Foreword BY Jack Straw

Clare Dyer “the Rights Stuff” The Guardian October 2 2001

Dicey, A V. Introduction to the Study of the Law of the Constitution (1898) 10th Ed. 1959, London Macmillan

E Barendt An Introduction to Constitutional Law. Clarendon. Oxford University Press

Entick v Carrington (1765) 19 St. Tr. 103 Beatty v Gillbanks (1882) 9 QB 308

F Klug and K Starmer [2001] PL 654

Griffin, J.A.G. The Politics of the Judiciary 5th Ed. London Fontana 1977

HRA 1998 section 10 and Schedule 2

Law for Legal Executives Part 1 Year 1 Timothy Blakemore and Brendan Greene

Lord Donalson “Beware this abuse” The Guardian December 1995

Lord Irvine of Lairg Q.C. The Impact of the Human Rights Act: Parliament, the Courts and the Executive Public Law PL 2003 Summer

Lord Woolf Thank Offering to British Fund Lecture 15 October 2002

R v A [2001] 3 AII ER1

R v Leeds Crown Courts, ex p Wardle [2001] 2AII ER1

R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 WLR1

T Campbell in Campbell, Ewing and Tomkins, Sceptical Essays on Human Rights, ch 2

Venables v News Group Newspaper Ltd [2001] Fam 430

Venables v News Group Newspaper Ltd [2001] Fam 430 Law for Legal Executives Part 1 Year 1 Timothy Blakemore and Brendan Greene Constitutional and Administrative Law 4th Ed. Barnett. Cavendish

W and B (Children Care Plan) in re [2001] TLR 15 March

 

 

---