Discuss about the Impact of Human Rights Act.
The Human Rights Act 1998 was enacted by the British parliament in the year 1998 but actually was bought into force in the year 2000. The main purpose of the enactment was to introduce the rights provided by the European Convention on Human Rights into the English legal system. Making it simple the purpose of the act is to prevent any government body to operate in a manner contradictory to the provisions of the convention[1]. The provisions of the act can only be overridden if any other primary legislation contradicts with such provisions. It provides that the English courts must uses the decisions made by the European Court of Human rights and interpret legislations in such a way, which would establish compliance with the convention. In case where the judges find it, impossible to interpret the provisions of legislations according to the compatibility with the convention the judges must not override the provisions of the legislations but merely provide a declaration of incompatibility. Thus, the declaration seeks to maintain the parliamentary sovereignty by not altering the principles of the primary legislation. The HRA also provides individual a right to appeal and sue in the European Court of Human Rights in Strasbourg.
The Act since it has come to force has had a significant impact on the British legal system. It has changed the way in which legislations are interpreted by the judges. Although it is argued that, the Act seeks to promote Judicial Politicization in reality this statement is far from true. This paper discusses the impact of the Human Rights Act 1998 on the English legal system and whether it is increasing the risk of judicial politicization within the country or not. The paper also aims to discuss the benefits and detriments resulting out of the application of the act and its impact of the interpretation of statues[2].
The Human Rights Act 1998 (HRA) was enforced on 2nd October, 2000 in United Kingdom. The Act was enacted with the sole objective to safeguard the rights incorporated in the European Convention on Human Rights and to provide further legal effect in the law of United Kingdom. Before the enactment of the HRA, the European Convention on Human Rights was not under any obligation to provide legal effect to the rights. The Convention was used as a part of the domestic law and it acted as a mean to interpret statutes[3]. The Parliament did not legislate against the rights laid down in the Convention. In Waddington v Miah [1974][4], it was held that while interpreting the ambiguity of any statutory provision, it was assumed that the Parliament should not pass any legislation, which shall be inconsistent with the international obligations including the human rights laid down in the Convention.
However, prior to the enforcement of the HRA 1998, the citizens resorted to the European Court of Human Rights (ECtHR) for safeguarding their human rights. The incorporation of the Act was viewed to be beneficial as it permitted the British Judges to manipulate the course of human rights in Strasbourg. The Act was purported to develop a culture of human rights in the nation. However, the Act failed to fulfill the purpose for which it was enacted. Instead of permitting, the UK Judges to manipulate the human rights direction or developing human rights culture in UK or internationally, the Act was largely criticized by the public[5].
One of the reasons the Act faced criticism was section 2 of the HRA 1998. Section 2(1) of the Act stated that in order to determine any question related to the rights in the Convention, the judgment, declaration, decision and the advisory opinion of the ECtHR must be taken into consideration to the extent that it is relevant to the legal proceedings from the question it has arisen. The public criticized the legislation, as it was apparent that the UK courts have to consider the Strasbourg law and not the ECtHR statutory interpretation of the Convention. The Parliament reassured that the provision under section 2(1) of the Act does not require the UK courts to consider the Strasbourg’s decision but respect Strasbourg jurisprudence as was held by the House of Lords in Regina (Ullah) v Special Adjudicator [2004][6].
Secondly, Section 3 of the Act expressly stated that primary and subordinate legislation must be interpreted in a manner that is in consistent with the rights laid down in the Convention, as far as it is possible to do the same. The provision was criticized for the fact that HRA 1988 is a broad legislation and the provisions therein are not in detail form as compared to the other legal statutes. Consequently, the Judges had an extensive area to apply their discretion. Section 3 of the Act have restricted the court’s power to interpret the statutes as they are to be construed only in the manner that is in compliance with the rights mentioned in the Convention as far as it is possible to do so. However, in realty, the Parliament has provided the judiciary sufficient freedom to interpret statutes even when it becomes impossible to construe the same in a manner that is in consistent with the rights mentioned in the Convention[7]. The provision is ambiguous as it vaguely states the possible limits of interpretation by the British Judges. In Ghaidan v Godin-Mendoza [2002][8], it was stated that the court may be required to interpret beyond the legislative intent of the Parliament.
Thirdly, section 4 of the HRA permits the domestic Courts to issue a Declaration of Incompatibility, that is, when the interpretation of a statute is not compatible with the rights laid down in the Convention. This provision of the Act safeguards the Parliamentary sovereignty principle. The section enables the courts to issue declaration that it is not possible to interpret the statute in consistent with the rights mentioned in the Convention as stipulated under section 3 of the Act. In cases where the statutes are construed in contrary to the rights of the conventions, such construing of the statutes comes into conflict with the intention of the legislature. Only the courts having superior authority can issue a Declaration of Incompatibility. However, the incompatibility declaration do not bind the parties to the legal proceedings neither such a declaration can make the legislation invalid. In Burden V United Kingdom [2008][9], the declaration did not prove to be an effective remedy. The purpose of the section cannot be achieved by lawful means but by political means. The section has restricted the independence of the judiciary as Parliament is empowered to legislate in case the interpretation is inconsistent with the Convention rights[10].
Fourthly, section 10 empowers the minister of the government the power to provide a ‘remedial order’ in response to the declaration of incompatibility or any ruling passed by the ECtHR. The minister to remove any such necessary incompatibility must pass the remedial order. The order is passed in order to make the legislation consistent with the rights mentioned in the Convention even if it is required to frame a completely new legislation.
Fifthly, section 6 of the Act stipulates that tribunals and courts be considered as public bodies, which denotes that the judgment made must be in compliance with the human rights of the nation irrespective of the fact that the dispute is between the citizens or between the citizens and the state except the incompetent declarations made by the Judges.
Lastly, section 8 stipulates that a court is empowered to make such necessary rectifications which they consider to be appropriate and fair. The right of the judges to make the necessary remedies is not restricted to a Declaration of Incompatibility. The judges may consider the equality maxim while providing such necessary remedies.
On one hand, the legal framework of the HRA brings about a significant contrast between the relationships of the domestic courts with the Parliament, whereas on the other hand, it signifies the contrast between the relationships of the domestic courts with Strasbourg Court. For instance, section 4 recognizes the supremacy of Parliament because if any interpretation is made which is inconsistent with the Convention rights, the Domestic courts can only issue an incompatible declaration[11]. It is for the Parliament to decide what action can be taken to identify the issue raised by the domestic court. If the Parliament expresses its views clearly then the domestic courts are under obligation to give effect to the legislative intention of the Parliament.
Several times, the public often alleges the courts that the decisions are often influenced by political reasons instead of legal reasons. The Courts alleged to illicitly contravene the limits of the constitutional law and intrude in the politics to the disadvantage of the government and the Parliament. This feature of the judiciary is sometimes termed as judicial politicization[12]. The ECtHR is encouraging the judges to become more politicized as a result of which the significance of national sovereignty is coming down. Before the enactment of the act, court were allowed to use the Convention rights as a tool for construing statutes and the Parliament’s act was not apparent. After the enactment, the courts are under an obligation to interpret the statutes in compliance with the Convention Rights. The role of the judges has been critically assessed whether it was the judges or the Parliament that was legislating laws. Although the Judges are not adherent to politics but they deal with certain cases especially policy related decisions, which in a democratic country, must be made by the parliament.
The main argument against the implementation of the HRA is that its aims to tilt the balance of power in the favor of the judges. If the judges are brought into politics the way in which they are appointed would be questioned by the people. The decision made by the judges and the political position of the potential judges would come under public scrutiny as the case has been in America[13]. Various senior judges have dismissed the fear of the critiques with respect to the implementation of human rights in the English legal system. The chief justice of England and Wales lord Woolf said that the implementation of the HRA would not at all politicize the judges. Moreover, the judges will now have a more difficult role as they would need to address complicated questions with respect to human rights compliance consisting of political elements. The judges always addressed these questions but after the implementation of the Act, they would have to deal with them more often[14].
The best counter argument to the critiques in relation to the implementation of HRA is that the act does not allow the judges top override the primary principles of other legislations and as a result maintains the parliamentary supremacy. The act only tells the judges to make their interpretation with respect to the provisions compatible to the convention as far as it is possible for them to do so without hampering the principle of the legislation. The judges have no power to change the legislation and declare it as unconventional on any grounds. The government minister can also only change the legislation without waiting for a new enactment when the judges of a higher court have declared the legislation unconstitutional[15]. The question, which arises due to this, is that how often and to what extent the ministers can use such powers. According to Lord Woolf, the parliament would continue to use such powers, as its objective would be to ensure the compliance with the European convention. Contradictory to this statement it was provided by Lord Irvin that the parliament will not always strive to change legislations according to judge’s declaration of incompatibility and there would be cases where the parliament would not make changes to the legislations. Thus, the answer to the question is still unclear.
Statutory interpretation is done by the court in order to bring out the intention of the parliament. The court is not concerned about the ability of the parliament with respect to providing a fair and just result in relation to the parties to the dispute. It only mains to interpret the provisions provided by the parliament using different rules such as the literal, golden and mischief rule of interpretation. This aspect of interpretation of statues may sometimes lead to an unfair result, which is against the provisions in relation to human rights. The Constitution clearly identifies human rights as one of the main pillars of democracy therefore; there was a significant need to address the issue. The implementation of the HRA has provided a tool to the judges to interpret the legislations in a manner, which provide a result in compliance to human rights. It can be argued in this case that the political background of the judges may influence the decision made by them and the results obtained would be according to their personal perspective not the legal perspective[16]. However, it has to be noted in this case that judges are not able to alter the meaning of the legislations according to their own perspective and can only alter it to the extent that it does not contradict the provisions of the primary legislation. The inclusion of HR in relation to statutory interpretation has made the legal system of UK a better place. This can be best illustrated by through the case of Mr and Mrs Driscoll. In this case the husband and wife were dependant on one another as one was blind and the other could not walk. They both lived together and compensated for the disabilities of each other. The husband was moved to a care home but the wife was not allowed as she lacked criteria. It was decided on the basis of human rights that the wife must also be allowed.
It has been argued against the implementation of HRA that is is providing excessive rights to the individuals[17]. A student who has not been allowed into the class room is claiming compensation, a person committing rape is claiming compensation as an appeal made by him had been delayed and individuals who have obtained sites contradicting the planning provisions are being allowed to retain their premises. However, they did not take account of the fact that even if individuals are claiming rights in excess none of the claims, which are irrelevant, are being upheld by the court. All the above-mentioned claims in relation to the human rights have been rejected by the court.
It has been argued against the implementation of HRA that it would lead to suppress the parliamentary supremacy as the judges would find ways to amend legislation in order to bring into effect their own ideologies[18]. However, there have been no evidence provided by the critiques to support this statement. In most of the cases where the judges do not find compatibility with the human rights commissions the court makes sure that it issues a declaration of incompatibility without altering the meaning of the legislation.
According to Donnelly that Human Rights Act is not able to provide protection to to rights as the government has the power under Article 15 of the constitution to derogate from the ECHR[19]. Recent court decisions such as in the case of R (ProLife Alliance) v. BBC [2002][20] have been decided on the basis of common law rather than that of the statutory rights. This introduces judicial activism within the legal system. However it has to be noted in favor of the HRA that these cases are rare and common law is only applied when it is not possible to comply with the conventional rights. The following cases depict how the implementation of the HRA has had a positive impact on the English legal system.
In the case of Campbell v. MGN Ltd. [2002][21] both Sara Cox and Naomi Campbell wanted to assert under the Act their right to privacy. Both of them were successful in getting their claim with respect to privacy and an amendment was brought by the British parliament to introduce the need of privacy in the legal system. In the case of A and Others v. Secretary of State for the Home Department [2004][22] it was held by the house of lords that the provisions of the part 4 of the Anti-terrorism, Crime and Security Act 2001[23] were not compatible with that of the human rights convention. As a result, the part 4 of the Act had been replaced by the new 2005 amendment. In the case of Price v. Leeds City Council [2005][24] it was held by the court that the right to home with respect to a Romani family could not be infringed by the Leeds council and they could not be evicted from public land. The decision was however referred to the House of Lords as it was contradicting the compliance with ECHR. These cases prove hoe effectively the implementation of the HRA is being going on in UK.
Concluding the paper it can be determined that amidst several criticisms the implementation of HRA had brought a revolutionary change in the English Legal System. The act had been enacted perfectly with respect to creating a balance between common law and human rights. Prima faice it can be stated that the HRA provides excessive rights to the individuals, increased power to the judiciary, risk of judicial politicization, favor to the terrorist, unlawful interpretation of statues and inadequacy. However an in depth analysis of the impact of HRA on the English legal system prove that its benefits to the society override its detriments.
The implementation of the Act do not affect the the parliamentary supremacy as Sections clearly state that the provisions can only be interpreted in a way which does not make the inconsistent to the principles of the legislation. The purpose of law is to provide justice and maintain equality and not to punish the innocent on technical grounds. The implementation of the HRA ensures that there is no detriment caused to the innocent party and justice along with the principles of equality is used when deciding a point of law. Thus, the paper can be concluded by saying that HRA has had a positive impact on the English Legal System without introducing the risk of judicial politicization.
References and Bibliography
Blauberger, Michael, and R. Daniel Kelemen. “Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU.” Journal of European Public Policy (2016): 1-16.
Canes-Wrone, Brandice. “When judges face politicized reelections, their opinions on hot-button issues change to reflect the majority view.” LSE American Politics and Policy (2014).
Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.
Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.
Conte, Alex, and Richard Burchill. Defining civil and political rights: The jurisprudence of the United Nations Human Rights Committee. Routledge, 2016.
Delaney, Erin. “Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom.” International Journal of Constitutional Law 14.3 (2016): 752-768.
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
Hann, Matt. “Introduction.” Egalitarian Rights Recognition. Palgrave Macmillan UK, 2016. 1-15.
Johns, Robert. Using the law in social work. Learning Matters, 2014.
Mullerson, Rein. Human rights diplomacy. Routledge, 2014.
Schoultz, Lars. Human Rights and United States Policy toward Latin America. Princeton University Press, 2014.
Simester, Andrew P., et al. Simester and Sullivan’s criminal law: theory and doctrine. Bloomsbury Publishing, 2016.
Sriram, Chandra Lekha, Olga Martin-Ortega, and Johanna Herman. War, conflict and human rights: theory and practice. Routledge, 2014.
Stone, Richard. Textbook on civil liberties and human rights. Textbook on, 2014.
Stone, Richard. Textbook on civil liberties and human rights. Textbook on, 2014.
Ziegler, Katja S., Elizabeth Wicks, and Loveday Hodson, eds. The UK and European Human Rights: A Strained Relationship?. Bloomsbury Publishing, 2015.
Table of cases
A and Others v. Secretary of State for the Home Department [2004] UKHL 56
Burden V United Kingdom 13378/05, [2008] ECHR 357, Times 07-May-2008, [2008] 18 EG 126
Campbell v. MGN Ltd. [2002] EWCA Civ 1373
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30
Price v. Leeds City Council [2005]
R (ProLife Alliance) v. BBC [2002] EWCA Civ 297
Regina (Ullah) v Special Adjudicator [2004] UKHL 26.
Waddington v Miah [1974] UKHL 6, 138 JP 497, 59 Cr App Rep 149, [1974] 2 All ER 377, [1974] 1 WLR 6
Ashworth, Andrew, and Jeremy Horder. Principles of criminal law. Oxford University Press, 2013.
Baeyens, An, and Tom Goffin. “European Court of Human Rights.” Eur. J. Health L. 21 (2014): 197.
Cameron, Iain. An introduction to the European convention on human rights. Iustus förlag, 2014.
Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.
Gerbaldo, Federica, and Collegio Carlo Alberto Law. “European Court of Human Rights.” (2015).
Gies, Lieve. Mediating Human Rights: Media, Culture and the Human Rights Act. Routledge, 2014.
Harris, David John, et al. Harris, O’Boyle & Warbrick: Law of the European convention on human rights. Oxford University Press, USA, 2014.
Izard, Carroll E. Human emotions. Springer Science & Business Media, 2013.
Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.
Ziegler, Katja S., Elizabeth Wicks, and Loveday Hodson, eds. The UK and European Human Rights: A Strained Relationship?. Bloomsbury Publishing, 2015.
Johns, Robert. Using the law in social work. Learning Matters, 2014.
Waddington v Miah [1974] UKHL 6, 138 JP 497, 59 Cr App Rep 149, [1974] 2 All ER 377, [1974] 1 WLR 683
Clapham, Andrew. Human rights: a very short introduction. OUP Oxford, 2015.
Regina (Ullah) v Special Adjudicator [2004] UKHL 26.
Stone, Richard. Textbook on civil liberties and human rights. Textbook on, 2014.
Ghaidan v Godin-Mendoza [2002] EWCA Civ 1533; [2004] UKHL 30
Burden V United Kingdom 13378/05, [2008] ECHR 357, Times 07-May-2008, [2008] 18 EG 126
Delaney, Erin. “Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom.” International Journal of Constitutional Law 14.3 (2016): 752-768.
Blauberger, Michael, and R. Daniel Kelemen. “Can courts rescue national democracy? Judicial safeguards against democratic backsliding in the EU.” Journal of European Public Policy (2016): 1-16.
Canes-Wrone, Brandice. “When judges face politicized reelections, their opinions on hot-button issues change to reflect the majority view.” LSE American Politics and Policy (2014).
Schoultz, Lars. Human Rights and United States Policy toward Latin America. Princeton University Press, 2014.
Conte, Alex, and Richard Burchill. Defining civil and political rights: The jurisprudence of the United Nations Human Rights Committee. Routledge, 2016.
Stone, Richard. Textbook on civil liberties and human rights. Textbook on, 2014.
Sriram, Chandra Lekha, Olga Martin-Ortega, and Johanna Herman. War, conflict and human rights: theory and practice. Routledge, 2014.
Hann, Matt. “Introduction.” Egalitarian Rights Recognition. Palgrave Macmillan UK, 2016. 1-15.
Mullerson, Rein. Human rights diplomacy. Routledge, 2014.
Donnelly, Jack. Universal human rights in theory and practice. Cornell University Press, 2013.
R (ProLife Alliance) v. BBC [2002] EWCA Civ 297 Campbell v. MGN Ltd. [2002] EWCA Civ 1373
A and Others v. Secretary of State for the Home Department [2004] UKHL 56
Anti-terrorism, Crime and Security Act 2001 Price v. Leeds City Council [2005]
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