Human Rights Act 1998 is a constitutional act
The enactment of the Human Rights Act 1998 (HRA) and the incorporation of European Convention on Human Rights (ECHR) in United Kingdom law marked a turning point in United Kingdom’s legal and constitutional history. This new epoch has brought about greater domestic respect for human rights under the rule of law, resulting in significant changes in public law, both in substance and in the conduct of judicial review proceedings. This essay question is concerned about the consequent impacts of this statute upon British constitution. In order to approach this question, I shall basically focus on three areas; the constitution of United Kingdom in relation with the unwritten constitution, the Human Rights Act 1998 and the consequences of this Act on the English legal system.
In modern democratic nations the constitution is often to be found in a written and codified form. The United Kingdom is very unusual among those countries in not having such constitution. The British constitution is neither written nor codified in any single document; which is regarded as unwritten constitution. However, when a nation-state possessed a written constitution, the constitutional law of such countries should be obvious and equitably clear. The law making and enforcing bodies of such countries ‘must’ have to behave in accordance with their constitution. There is no chance whatsoever, to override the constitution. For example, in the United States (US) where the constitution is written to last, and thus it is very difficult to alter any part of it. Nevertheless, all legislative bodies of United States ‘must’ have to comply with the US constitution. As a result, the parliament of United States does not have so much power to impose such law which is incompatible with the constitution. Even if they do so, the American judiciary does have sufficient power to review any decision made by any section of government and declare it as unconstitutional. On the other hand, where the constitution is unwritten, the circumstance is slightly different. Therefore, in United Kingdom the precious substance of its constitutional law became ambiguous and subject to debate. The constitutional lawyers of United Kingdom thus need to consider different sources of British constitution which is constructed through hundreds of years.
The constitution of the United Kingdom is actually based on Acts of Parliaments (statutes), judicial reviews and some political conventions. In addition, it (the constitution) is guided by three fundamental principles which are the separation of powers, the supremacy of parliament and the rule of law. However, the absence of any written constitutional framework in United Kingdom affects British constitutional law.
In terms of human rights protection, Britain is unusual among other modern democratic states in having neither a Bill of Rights. However, most democratic countries have a written Bill of Rights, which lays down the rights, which by law can be enjoyed by her citizen. These protected rights have to be respected by all public and private individuals; unless the Bill itself allows otherwise. On the contrary, citizens’ rights in the United Kingdom described as residual. Which means the rights and freedoms for the British people is considered to be protected by a presumption; that they are free to do whatever is not precisely prohibited by existing law. The present situation within the United Kingdom is that, there are three safe guards exist to protect individual rights. These consists of residual rights, the European Convention on Human Rights and the Human Rights Act 1998 (HRA).
The protection of human rights and civil liberties is one of the principles functions for any legal systems around the world. By passing the Human Rights Act 1998, these rights were brought home back by labor government. A significant change in the British position was made by the introduction of the Act, which appears to raise a number of legal and constitutional questions (as we shall see). The implementation of the Act is considered as an important step on the way towards meeting the need for greater protection for human rights. According to Lord Chancellor it would have,
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“a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights”
Nonetheless, its introduction in domestic legislation has affected many legal areas. It has been, therefore, regarded as one of the most substantial changes to Britain’s legal system since the Magna Carta (1215). It opened the door for protecting the essential rights and civil liberties of the British people by enacting (partially) the European Convention on Human Rights a part of English legal system. The Human Rights Act 1998, however, does not enact new laws to protect human rights, but guaranteed those which were already afforded to British citizen (by ECHR). By enacting the Convention into domestic law, the Human Rights Act unintentionally effect on the constitutional arrangement of the United Kingdom. Which in turn, impact the jurisprudence, legislator as well as the sovereign British parliament. The Act does not even install any Bill of Rights, but it makes the traditional British domestic law and courts to be compatible with the Convention rights. However, this new power of British courts does not obstruct to the validity and application of conflicting legislations.
Before the Act was enacted, the European Convention on Human Rights was not directly applicable to the English legal system. Even the courts themselves had no power to deal with human rights cases. Citizens, who believed their rights under the Convention had been breached or threatened, need to bring their claim to Strasbourg (European Court of Human Rights) to seek redress. This made it, indeed, a lengthy and a costly procedure. Although the courts did not have the power to enforce Convention rights, prior to the Act 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 circumstances when the meaning of common law or statutory law was ambiguous, undeveloped or uncertain. For example, in the case of Waddington v Milar , Lord Reid referred to Article 7 of the Convention. But, where the meaning was clear, the domestic courts ‘must’ had to apply them. Even though, the legislation indubitably opposed the Convention. Nevertheless, before the Human Rights Act was enacted, there was no obligation for the parliament or any public authorities to exercise their power in accordance with the Convention. Prior to Human Rights Act the sovereignty of parliament was indubitable. There was no obvious constraint whatsoever upon the parliament to make law on any topic it considered. Thus, was unquestionably, manifested the doctrine of parliamentary supremacy. However, this dominative sovereignty of British parliament was it self a major obstacle and prevents any significant increase in the level of human rights protection. Notwithstanding, parliament was free to remove or control individual liberties at any time, just by passing the appropriate legislation necessary. Malone v Metropolitan Police commissioner (1979) gives a good example of how prior to the Human Rights Act there was no right to privacy in English law. Therefore, individuals could have no complaint when they thought their privacy was invaded i.e. interception of their mail, bugging of their telephones and so on. Parliament has the power to amend any written or unwritten portion of the constitution any time. Nonetheless, parliament was free to legislate any ways it deemed. And the courts, theoretically, were obliged to uphold them; contrary to US supreme court.
However, these circumstances have been almost changed. Today, the European Convention on Human Rights became directly applicable through the Human Rights Act 1998, which came into force in October 2000. The Act sets a legal standard for all new and old legislation. In spite of that, Human Rights Act provides essential powers to the British courts to enforce the Convention rights. This might, arguably, creates a shift of power from the legislator to the court. Thus, its ‘interpretative obligations’ in s.3; 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”.
This provision has effect on all cases, “civil or criminal, private or public, against private legal persons or public authorities” 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, the Human Rights Act 1998 has created a statutory requirement that all legislation ‘must’ have to be read and given affect accordingly with Convention rights, so far as this is possible. With the Act in force, it is no longer necessary to find ambiguity using the convention as an interpretative tool. Unquestionably the introduction of Section 3 will have inevitable effect on the law. As Lord Cooke of Thornton stated:
“Section 3 will require a very different approach to interpretation of that to which the English Courts are accustomed. Traditionally the search has been for the true meaning that would prevent the making of a declaration of incompatibility”
In contrast, the new interpretative obligation provides one of the most essential components to protect human rights from being abused. It (s.3) applies to both primary and secondary legislation and legislation “whenever enacted” i.e. before or after the advent of the Human Rights Act comes into force. R v A (2002) is often referred to as a ‘high water’ mark for s.3 and it certainly involved considerable interpretation in a difficult context. In this case the defendant was accused of rape. The accused person wanted to tell the jury that there was a previous consenting sexual relationship between them. However, the Youth Justice and Criminal Evidence Act 1999 (s.41) forbid this kind of evidence being adduced in order to protect complainants private life. The House of Lords held that the judge had a power under s.3 of Human Rights Act to allow such evidence to be adduced if its exclusion would result in an unfair trial for the accused. The question was whether such a bold and positive interpretation was consistent with section 41 as seems to be the requirement of section 3 of the 1998 Act. Lord Steyn giving judgement held that on “ordinary methods of interpretation”, section 41 did stop the trial judge from allowing the accused to use past evidence in the rape trial. However Lord Steyn went on to add that section 3 of the 1998 Act “applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings”. The Court had a duty to interpret section 41 in a way, which protects the accused human rights. This intensifies the importance of s.3 and reinforces its powerfulness in interpreting legislation. Similarly, in Ghaidan v Mandoza (2004) the House of Lords held that it was possible to set forth the long established habitual meaning of the Act in order to make it compatible with the Convention rights.
Despite, there are circumstances at which point it is impossible to interpret legislation compatibly with the Convention rights. This does not, however, gives courts in the United Kingdom the power to strike down or set aside the Acts of parliaments. 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. 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) of the Human Rights Act 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 or the continuing enforcement of such provision, nor is it “binding on the parties to the proceedings in which it is made” (s4(6)). To date, the courts have exercised the power of incompatibility sparingly. One example is found in Alconbury Developments Ltd and Others v. Secretary of State for the Environment, Transport and Regions (2001). In this case, a declaration of incompatibility was grunted 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. Another case could be Bellinger v Bellinger (2003) where declaration of incompatibility was declared by denying transsexuals rights to marry.
Furthermore, the s.2 of the Human Rights Act sets an obligation for the British courts to take into account the case law of European Court of Human Rights (ECtHR). It has impacted the separation of powers and the level of difference expected of the judiciary towards both the executive and parliament. After the Act coming into force the domestic courts of United Kingdom are allowed to apply the principle of proportionality and the protection of human rights which is secured by the Convention. However, Lord Steyn warned that, proportionality allowed the courts to review such Acts that are incompatible with fundamental rights. But it is only allowed for the courts when there is a strong evidence of irrationality. The courts will now take a strong approach to protect human rights. In a very recent case of A v Home secretary (2005) the House of Lords declared detention powers under the Anti Terrorism, Crime and Security Act 2001, which is incompatible with the right to liberty of individuals. Despite the powers being authorized by parliament and the government lodging a derogation under the Act to accommodate the threat of terrorism.
On the other hand, there are further implications of Human Rights Act to the English legal system. For example, the court’s obligation to take the decisions of European courts into account under the s.2 of the Act or the new statutory duty of the courts about the new method of interpretation under s.3, affects the traditional principles of judicial precedence. Which means, after the Human Rights Act came into force the decisions of ECtHR now need to take into account by the domestic courts along with the case laws of higher British courts. Nevertheless, due to the respect of s.3 of the Act, domestic courts are nowadays allowed to depart from its traditional interpretation of legislation in accordance with the convention (as discussed above). With all these new implication of the Human Rights Act 1998 refers to the intention of parliament; that all statutory provisions of British constitution, wherever possible, should be compatible with the Convention rights and the courts should follow the decisions of European courts.
Finally, the Act has impacted general legislative process of the sovereign parliament of the United Kingdom. According to the s.19 of Human Rights Act a minister in charge of a Bill would be required to make a statement of compatibility prior to the Bill’s second reading. This statement should indicate whether or not the proposing Bill complies with protected Convention rights. In such way, indubitably, this portion of the Act is putting a restraint upon the sovereignty of parliament in order to act along with the Convention rights. In addition s.10 of the Act provides a first track procedure for the alteration of incompatible legislation.
However, the Human Rights Act 1998 does have some limitations in some extent. Whether legislation is primary or subordinate, section 3 fails to act upon controlling the validity of that legislation. However, although the courts are given power under the Convention to interpret legislation compatibly with the convention rights, but they are not given the power to dismiss legislation when it is incompatible. Instead, they just have the power to declare an incompatibility under s.4 of the Act. Notwithstanding this authorization is only affordable by the higher courts only. The Human Rights Act is generally viewed by society as entrenched and imposing significant safeguards for individuals by restraining Parliaments law-making powers. But, this is not the case; due to the Act being an ordinary Act of Parliament and therefore includes the possibility of amendment or new legislation changing its significance or stance. In light of this, parliamentary sovereignty has not been affected as Parliament still has the power to change the Act or enact new legislation to overrule it. Lord Steyn declared that,
“it is crystal clear that the carefully and subtly drafted Human Rights Act preserves the principle of parliamentary sovereignty”
Moreover, the provision in s.19 of the Human Rights Act 1998, requiring ministers to state whether a Bill conforms with the 1998 Act, this will discourage the executive in some circumstances from introducing legislation that breaches the European Convention on Human Rights, but they are still able to do so, which is a huge weakness of the present situation. While the Human Rights Act represents an important advance for civil liberties in the UK, there are still significant limitations. In particular, legislation that is incompatible with the Convention will still be valid; judges will not have the power to strike down offending statutes as unconstitutional. Thus the principle of parliamentary sovereignty remains intact.
Conclusively, the Human Right Act marks a significant constitutional change in relation to citizen’s awareness about rights, and their protection by judges in the domestic courts. The Act allows the Convention to take over precedence before domestic law. The act is Pressuring the parliament, to legislate in a manner which is compatible with the protected convention rights. Notwithstanding, the judges can use the European Convention on Human Rights as an aid to help resolve some of the ambiguities in domestic law. The Act has set the new power for the courts to interpretation of legislation accordance with the Convention. It requires judges to make declarations of incompatibility wherever domestic law is judicially seen to conflict with the Convention rights. Nevertheless, the act allows victims more structured system for redressing human rights violations. However, This method allows Parliament to keep it’s supremacy to amend and introduce law, the reason why is that no court can invalidate an Act because of incompatibility with the Convention, but ask Parliament to look into it and make changes if need be. However, the Act simply gives further effect to the convention and retaining the essential constitutional and legal structure of the United Kingdom, in particular the sovereignty of parliament.
Elliott, C. and Quinn, F., 2006, p.1
Elliott, C. and Quinn, F., 2006, p.1
Hilaire Barnett, 2002, p.2
Elliott, C. and Quinn, F., 2006, p.253
Jowell, J. and Oliver, D., 2000, p.100
 2 ALL ER 377
Jowell. J. and Oliver, D., 2000
 2 All ER 620
Elliott, C. and Quinn, F., 2006, p.2
Human Rights Act 1998, s3(1)
Wadham, J. and Mountfield, H., 1999, p.27
Hansard HL 3 November 1997 Column 1272.
 1 AC 1546
 2 AC 557
Jowell, J. and Oliver, D., 2002, p.102
Allen, M., 2002, p.152
 HRLR 2
 2 AC 467
Edwards, R., 2002
R v Home Secretary (2001) WLR 622
(2005) UKHL 71
Jowell, J. and Oliver, D., 2000, p.56