The Human Rights Act 1998 places the courts in effective control of the British constitution. It could now be described as a 'legal' rather than a 'political' constitution"
"The Human Rights Act 1998 places the courts in effective control of the British constitution. It could now be described as a 'legal' rather than a 'political' constitution"
Discuss, using recent caselaw to illustrate your answer.
Since the incorporation of the Human Rights Act into UK law, there has been much controversy as to whether the courts have too much input in parliamentary matters. There is also the question of whether the judiciary should not be allowed to exercise this influence since they are not an elected body like the government. This essay will examine the extent to which the courts “control” the constitution, and whether they have removed power from parliament meaning that it is now more legally based.
The Human Rights Act 1998 gives greater effect to the Convention Rights which the UK signed in 1953. The vertical aspect of the act means that UK courts can now deal with disputes between the public and the state, instead of having to refer the case to the European Court of Human Rights. The courts have not always had such of influence in parliamentary matters however. The Brind 1991 case illustrates how the Secretary of State was not obliged to take notice of Article 10 of the convention, as it had not officially become part domestic law. Lord Woolf said, in discussion of the effect of making the Convention part of domestic law, “It is already obvious that the result will be…significant changes, to our constitutional arrangements” . As Woolf suggests, allowing the courts to comment upon legislation means that they have at least some degree of influence. It is important to point out that Britain does not have a codified constitution as many other countries do, and it is instead comprised of statute, convention and case law. This means the constitution is more flexible and fluid than other countries which have a stricter “Bill of Rights”. Lord Lester and Lydia Clapinska, in Human Rights and the British Constitution, note that “political (if not legal) sovereignty was henceforth to be shared with the European institutions created by the convention” This control is not legal however, as the courts do not possess the authority to force the Government to change or abolish legislation. Ministers must, before new legislation is enacted, either state that it is compatible with the convention, or incompatible. The courts are then at liberty to issue a declaration of incompatibility, which puts pressure on the Government to re-examine the issue. It is however then a matter for parliament to decide whether to continue with the legislation against the court’s ruling. So far however, the Government has responded to every declaration of incompatibility by amending legislation, this perhaps showing the degree of influence that the courts actually have.
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When the Human Rights Act was first included in 1998, the Home Secretary Jack Straw said, “We want the courts to…only in the last resort conclude that the legislation is incompatible with them [convention rights]” . Straw’s comment shows that he did not expect declarations of incompatibility to be a common occurrence, and that courts would strive to read legislation in a way that is compatible with convention rights. However more recently, an increasing number of cases have shown that the judiciary are not afraid to issue such declarations, and that judges have become more vocal if they believe that Parliament have contravened the convention rights.
The most well known example of a Human Rights breach by the Government is the Belmarsh Detainees Case 2004. Following a declaration of incompatibility by the courts, the Government had to reconsider legislation regarding indefinite detention without trial of suspected international terrorists. The Judges vocally criticised parliament, with Lord Nichols commenting on the rule of law - “indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law”. Lord Hoffman went as far as to say, “The real threat to the life of the nation…comes not from terrorism but from laws such as these”. Such radical comments put the Government under great pressure to amend the legislation, which they did in the Prevention of Terrorism Act 2005. As a result of the court’s action, the Government were forced to change this section of the constitution. The case, Secretary of State v JJ 2006, is also an example of where parliament was persuaded by the courts to change legislation; in this case with respect to the length of time suspects were confined to their houses. The judges deemed this against Article 5 of the convention, and the Government were pressured into increasing the amount of time the suspects are allowed out of the house. These cases ultimately show that although the courts have influence, it has been the Government’s final decision to change the legislation.
The question of whether the courts are in control of the constitution is often thought to be a question of whether the judiciary are more likely to use Section 4 (s.4) or Section 3 (s.3) of the Convention. Using s.4 means that the act remains one for Parliament to re-examine, whereas s.3 means that the courts are using more autonomy in stretching or changing the meaning of particular legislation. It may seem that the more that s.3 is used, the more the Constitution is placed in the hands of the courts. The first case to generate debate as to the effects of s.3 was the R v A (No 2), where Lord Steyn concluded that it would sometimes be necessary to “adopt an interpretation which linguistically may appear strained”. It appears that he is saying that the courts can make fairly fundamental changes to the meaning of legislation in order to bring it into line with the Convention. From this perspective, it may seem that the courts do indeed have substantial power over the constitution if they are at liberty to reinterpret legislation to make it compatible. In Ghaidan v. Godin-Mendoza, Lord Steyn commented that the courts were more reluctant to use s.3 because they felt it would undermine the constitution, but he dismissed this view by pointing out that, “Parliament…is free to override it by amending the legislation and expressly reinstating the incompatibility”. The Government are still in a position to activate legislation that has been deemed incompatible, although they are under conventional obligation to re-examine the particular issue. If they were not in a position to do this, one could more easily argue that the constitution is a legal rather than a political one.
The media often have a big effect on the Government, as it is important for politicians to keep public opinion on their side. Often, following the advice of the courts and adhering to Convention Rules can prove unpopular with the nation, as the national papers can misconstrue the Human Rights Act as giving more rights to terrorists. This happened in the Afghan Hijackers case, where there was huge media fury at the decision by the courts to allow hijackers to claim asylum in the UK, because they would be tortured if they returned to Afghanistan. The Government were criticised by Simon Jones, a columnist in The Times, for giving “human rights a bad name and inviting ministers to pass a new law”. Comments such as this in broadsheet newspapers can turn public opinion against the Human Rights Act, and provide more complications for the government. The media clearly also have an effect on governmental decisions regarding legislation and therefore constitutional amendments.
It could be argued that because the courts must incorporate judgements made in the Strasbourg courts, these judgements will in turn form part of our Common Law. However, according to s.2, courts are only bound to “take account” of any decision made in Strasbourg, but they are not bound to follow the judgement. This means that Parliament is still regarded as sovereign, and that our constitution is not forcibly changed by European Judgements. Lord Woolf does not believe that the introduction of the HRA 1998 has removed power from parliament, as he commented in a lecture concerning Human Rights given at the British Academy, “It provides very substantial protection for human rights without undermining those fundamental constitutional principles” It is clear that he believes that measures have been taken which aim to leave Parliament in control, without the courts undermining minister’s authority.
In conclusion, it appears that the courts do at least have some control over the constitution, at least more than they used to have. This is evidential by the cases regarding terrorism laws, and the way in which Parliament have reacted to every declaration of incompatibility. The way in which the judiciary can interpret legislation as they wish, in order to make it correspond with the convention, also shows their increasing control. Whether the constitution is now legal rather than political is a more difficult matter, as Parliament still has the power to keep legislation that opposes the HRA. It is however clear that the Diceian belief about Parliament being the sole maintainer of the constitution is now inconsistent with our current climate. As Blackstone said, “What Parliament doth, no power on earth can undo”, and I believe that this is still technically the case.
 AC 696
“Human Rights: have the public benefited?”, See accessed 20th December 2007
J Jowell and D Oliver, The Changing Constitution, (5th edn 2004), pp67-9
Hansard, House of Commons, vol 313, cold. 421-2
 UKHL 56
“Terror detainees win Lords appeal”, See accessed 22nd December 2007
 UKHL 56
 EWHC 1623
 1 AC 45
Cowie & Bradney & Burton, English Legal System in Context, (4th edn 2007) p123
 2 AC 557
 EWCA Civ 1157
Basic freedoms are being lost in the human rights circus” See accessed 24th December 2007
See accessed 20th December 2007
, Legal Method and Reasoning, (2nd edn 2003), p396