The genius of Sections 3 and 4 of the Human Rights Act 1998, is that they preserve the principle of Parliamentary Sovereignty while at the same time giving adequate judicial authority for the effective protection of Convention rights.

Authors Avatar

The genius of Sections 3 and 4 of the Human Rights Act 1998, is that they preserve the principle of Parliamentary Sovereignty while at the same time giving adequate judicial authority for the effective protection of Convention rights.’

Discuss.

For years, our unwritten constitution has been based on the idea of parliamentary sovereignty. This doctrine, most famously written on by Dicey quite simply states that acts of parliament are the highest form of law in the country and there are no rights which parliament cannot give or take away (except to extend its own life). Thus, citizens had no fundamental rights which could not be taken away by parliament as this would undermine the doctrine of parliamentary sovereignty. Despite the UK ratifying the European Convention on Human Rights (ECHR) in 1951 and accepting the right of individuals to petition to the European Court of Human Rights (ECtHR) in 1966, it was only with the coming into force of the Human Rights Act 1998 in 2000 that domestic courts could give some sort of aid in regards to infringements of these rights owing to strong interpretive powers. Here, we will specifically look at sections 3 and 4 and gauge whether they give adequate judicial authority for the effective protection of Convention rights.

Section 3 of the Human Rights Act 1998 requires that “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”. There are 2 key points here. Firstly, the usage of the word must is a clear instruction to the judiciary that they have to use it. Secondly, the fact that it states ‘so far as possible’ puts clear limits on this interpretive duty in the sense that if an act cannot possibly be construed in a manner compliant with the HRA, courts are not to ‘twist the act’ to read into in a compliant manner. These principles have been solidified by case law. In Re S (Care Order: Implementation of Care plan) [2002] 2 AC 291, Lord Nicholls says that section 3 is “a powerful tool whose use is obligatory” and clarifies that it is only interpretive and that courts must be mindful of its limits when using it. In R. (Anderson) v. Secretary of State for the Home Department [2003] 1 AC 837 Lord Bingham is perhaps more explicit and says that the powers only allow for interpretation of the judiciary in line with parliament’s objectives rather than “judicial vandalism.” This in turns leads on to section 4. Under section 4,   “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” Of course here, there is no obligation to make such a declaration.

Join now!

From the wordings of these sections, it becomes immediately apparent how parliamentary sovereignty is preserved. Though section 3 gives judges stronger interpretive powers than before, they are still merely interpretive. Also, section 4 clearly states that a declaration of incompatibility “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”. The next question is whether it gives adequate judicial authority for the effective protection of convention rights. To establish this, it is necessary to consider section 3 and 4 together but also section 10 as this forms an important part ...

This is a preview of the whole essay