What is the Human Rights Act?
The Human Rights Act 1998 (HRA)[1]
was created using some of the rights set out in the European Convention on
Human Rights (ECHR) and seeks to preserve the fundamental human rights of
British citizens. This popular argument that the HRA excessively empowers judges in order to protect fundamental rights demands an examination of two opposing positions. First in order for the HRA to effectively protect human rights judges must be
excessively empowered and second the excessive empowerment of judges is not
necessary for the HRA to achieve the protection of human rights. This article argues the latter.
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| Image source: UK Human Rights Blog |
Le Sueur describes human rights in their most basic
form as ‘basic, inviolable, fundamental and constitutional.’[2]
The HRA was formed from this basis in order to protect British citizen’s human
rights and ‘bring rights home’[3].”
Gardbaum explains how the HRA balances: ‘Recognition
and effective protection of certain fundamental rights or civil liberties’ and ‘a proper distribution of functions and
decision making power between courts and the elected branches of government.’[4]
Excessive power to judges?
From a Diceyan viewpoint ‘excessive power’ would suggest
that judges no longer just fulfil their function as interpreters of statute and
implementers of the law but go on to infringe on the powers of the executive or
the judiciary. Assuming this is what is meant by ‘excessive power’ then section
3 of the HRA could be interpreted to be a grant of excessive power to judges.
In Re S[5]
Lord Nicholls famously said that judges had ‘crossed the boundary between
interpretation and amendment’ if this is true then this is a good example of
judges being given excessive power. However there has been much criticism of this
view, section 3 of the HRA clearly states judges should ‘interpret’ and not
amend statute ‘so far as is possible’. The wording of the statute clearly
states that the judges cannot change statute to the extent that parliament’s
intention is no longer evident.
This article advocates the argument that the HRA
effectively protects human rights without giving the judges excessive power. The role of the judges in the implementation
of the HRA section 3 is to interpret legislation ‘so far as is possible’[6]
to make it compatible with the ECH. Many believe that this crosses the boundary
between interpretation and amendment. Ewing, Gearty[7]
and Klug all argue that section 3 damages parliamentary sovereignty. Klug said R v A[8]:
‘turned parliamentary intention on its head.’[9]
If so, there are implications for parliamentary sovereignty because judges
would effectively be legislating. A strong counter point to this would be Lord
Slynn’s point in R v A[10]
‘The Human Rights Act reserves the amendment of primary legislation to
Parliament. By this means the Act seeks to preserve parliamentary sovereignty.’
Kavanagh proposes that when using section 3 judges should consider social
policy, parliament’s response to the decision, justice for the individual in
the case remedy and the jurisprudence of the ECHR[11].
This provides factors for judges to think about which prevents them having
‘excessive power’ under the HRA and means that the HRA is a good illustration
of how human rights can be protected without giving judges excessive power. Gardbaum
counters by explaining that section 3 is excessive power for judges and that
section 4 should be used instead as it allows parliament to ultimately change
the law to be convention compatible. To overcome this criticism it must be
remembered the HRA itself is an act of parliament and so by giving judges any
power it can be assumed that it is acceptable to parliament to allow them to
interpret statutes in order to make them convention compatible. Also statutes
cannot be interpreted in a way that does not go ‘with the grain’[12]
of the statute and so parliamentary sovereignty is preserved.
Section 4 of the Human Rights Act 1998
Many academics believe section 4 of the HRA reduces the
separation of powers by allowing judges to declare statute incompatible with
the convention rights because in response to a section 4 declaration, section
10 allows a fast track remedial procedure to take place. Many believe that this
is a Henry VIII clause that contradicts parliamentary sovereignty as it allows
government ministers to amend statute by using a declaration of incompatibility[13].
Young counters this point by explaining
that section 10 only contradicts parliamentary sovereignty when one interprets
the Diceyan concept of implied repeal to mean that future legislation partially
impliedly repeals the prospective Henry
VIII clauses and that section 10 can overturn legislation enacted post
HRA. The decision in Thoburn[14]
(future legislation does not implied repeal prospective Henry VIII clauses)
should be used in all section 10 cases in order to ensure that section 10 does
not override parliamentary sovereignty[15]. Section 4 affirms the separation of powers by
allowing parliament to respond to the judge’s decision. A premise that is
supported by legislative evidence as parliament has amended statute in 11 out
of the 19 declarations of incompatibility cases so far.[16]
This has increased dialogue between the judiciary and parliament because both
are more aware of what their counterparts are doing, therefore the powers remain
distinct and the transparency of the different branches of the legal system is maintained
which ultimately leads to the rule of law being upheld. Therefore judges have
not been excessively empowered and section 4 is what restricts judges having
excessive power because it affirms the separation of powers, helps to uphold
the rule of law and supports dialogue between the judiciary and parliament. Jack
Straw commented through that HRA section 4 ‘the government thought it was
important to enshrine parliament’s sovereignty of the bill’[17]
Parliament effectively used its sovereignty
to allow judges to bring incompatible statutes to parliament’s attention because they deemed this to be the best way to
protect rights. It was parliament’s intention and so the judges cannot be said
to be excessively empowered.
Conclusion
To conclude, the HRA is an illustration of how to
effectively protect rights without ‘excessively empowering’ judges. This view
is opposed because the popular tabloids’ report negatively on the HRA[18]this
puts pressure on politicians to change the HRA and perhaps repeal it and
introduce a bill of rights[19]. Overall this has led to academic response[20]
that is a powerful influence on the public opinion about the power of judges
under the HRA and rights protection in general. By removing the bias caused by
the media we can see the HRA is an ingenious act of parliament which allows the
British constitution’s protection of rights to evolve in a way that is
controlled by parliament’s intentions. Section 3 maintains parliamentary
sovereignty but still allows statutes to be made convention compatible without
parliament having to spend time and money repealing and amending all
questionable statutes. Section 4 supports section 3 by allowing incompatible
statutes to be bought to parliament’s attention but still preserve the
separation of powers, parliamentary sovereignty and the rule of law by only
allowing parliament to decide whether or not statute is amended and allowing a
declaration of incompatibility to be made without statute being deemed invalid.
[1]
Human Rights Act 1998
[2] Le
Sueur, Sunkin , Murkens, Public Law text
cases and materials (First published 2010, Oxford University Press)175
[3]
Secretary of State for the Home Department, Rights Bought Home: The Human
Rights Bill (CM 3782 Oct 1997)
[4] S.
Gardbaum “How Successful and Distinctive is the Human Rights Act? An Expatriate
Comparatist's Assessment” (2011) 74 Modern Law Review 195
[5] Re
S [2002] UKHL 10 (40)
[6]
Human Rights Act 1998 3 (1)
[7] K.
Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern Law
Review 79
[8] R
v A [2005] UKHL 25
[9]
Klug, Judicial deference under the Human Rights Act 1998 EHRLR 125,128
[10] R
v A [2001] UKHL 25
[11] A.
Kavanagh, ‘Unlocking the Human Rights Act: The "Radical" Approach to
Section3(1) Revisited’ (2005) European Human Rights Law Review 259
[12] Ghaidan
v Mendoza [2004] UKHL 30 (33)
[13]
Parte H [2001] EWCA Civ 415, Baiai [2008] UKHL 53 and Thompson [2010] UKSC 17
[14]
Thoburn v Sunderland City COUNCIL [2003] QB 51
[15]
Young, Parliamentary Sovereignty and the human rights act (First published
2008, Hart Publishing) 6-8
[16] Ministry
of Justice, Responding to human rights judgments, Annex A: Declarations of
Incompatibility
[17]
Jack Straw Hansard HC 21/10/98 Col 1300
[18]
The Sun 09/02/11
[19] D.Cameron
Speech (26/06/06)
[20]
Hiebert, Parliament and the Human Rights Act: Can the JCHR help facilitate a
culture of rights?, Oxford Law Journals, vol 4 issue 1