Discuss about the The Sovereignty of Parliament for HRA?
For the purpose of exploring the effect of Human Rights Act, 1998 on the constitutional order in the UK and also on the statement that parliamentary sovereignty cannot be considered anymore as the main basis of British constitution, the status of human rights and parliamentary sovereignty before the introduction of Human Rights Act needs to be examined. In this regard, it is also required that the role played by the relevant sections of Human Rights Act should be examined and the way, the impact on a disorderly and human rights.[1] For this purpose, it is also that the relationship that exists between the parliament and judiciary in context of human rights should be analyzed and simultaneously, it needs to be seen if the balance of power existing between the two has been significantly altered by the introduction of the HRA.
In the absence of original constitutional framework in the UK had a significant impact on the constitutional law in the country and this is mainly true in case of power and the position of the Parliament.[2] The concept of Parliamentary Sovereignty was particularly popularized by the ideas of scholars like Dicey who described this region as the central law related with the British constitution.[3] In this context, sovereignty had been described as the power to legislate and also the lack of constrains on the power is enjoyed by the Parliament of UK in this regard.[4] In this way, the act of Parliament is not bound by or restricted by a greater law, like a written constitution.[5] An instance of this can be given in the form of the extension of the life of the Parliament during the two World Wars. In the same way, and that there and probably more significant implication that can be drawn from the concept of the sovereignty of Parliament is that the Acts of the predecessors are not considered as being binding for a sovereign Parliament and in this way, Parliament does not have the power to bind its successor parliaments.[6]
On the other hand, the Human Rights Act was implemented in October 2000. This legislation indicates a basic restructuring of the political constitution of the UK because the Human Rights Act because it has been said that with the introduction of this legislation, the political power has been transferred to the Judiciary from the Legislature and the Executive. In this regard, it has also been stated that there is no doubt that the HRA is the most noteworthy rearrangement of the political power that had taken place in the UK.[7] Before the introduction of the HRA, the legal order in the UK was that of Parliamentary supremacy, although it was sometimes altered by the courts while developing procedures of interpretation that helped to some extent in protecting some of the basic freedoms enjoyed by the people. For example, one such rule can be described as the presumption that it was not the intention of the Parliament to put the UK in breach of the obligations that have been imposed on it by the European Convention on Human Rights.[8] In this regard, it has been said that wherever there was any ambiguity in the legislation, as a result of which, one interpretation of the words that have been used in the legislation complies with the requirements of ECHR and the other interpretation does not, the courts are required to adopt the interpretation that complies with this provisions of ECHR.[9] But in this regard it needs to be noted that when clear and unambiguous words have been used in the legislation, the courts were required to apply such legislation, irrespective of the fact that it may result in violating the provisions of ECHR.[10]
But with the implementation of HRA, much more significant is now placed on protecting the basic human rights of the people due to the reason that the major aim of the Act was to “bring rights home” which is also demonstrated by the heading of the white paper of the government, “Rights Brought Home”. In this way, the introduction of this Act resulted in the end of the situation where a complaint was required to go to Strasbourg for the purpose of asserting the rights conferred by the Convention. On the other hand, now the British courts can hear the case of the claimant in such a case. Similarly, after the HRA was fully enforced, certain rights and freedoms were given further effect as the domestic level.
For example, it has been mentioned in section 2 of HRA that the courts should consider the jurisprudence of various supervisory and enforcement entities located in Strasbourg. In the same way, the parliamentary sovereignty has also been impacted by section 2(1) which requires that while dealing with a question that is related with the rights that have arisen in context of the rights provided by the Convention, the courts or tribunals are required to make allowance for the decisions of Strasbourg, so far these decisions are relevant in a particular case.[11] But in this regard it needs to be noted that in such a case, the courts are only required to consider the jurisprudence of the entities located at Strasbourg and as a result, the courts are not bound by it.
Under the circumstances, it can be said that the sovereignty of the Parliament has been weakened by section 2 because the lawmaking powers of the Parliament have been significantly limited by the ECHR.
This belief was further strengthened after the decision given in Do v. Secretary of State for the Home Department.[12] Lord Bingham had stated in this case that it follows that the national courts are subject to a duty like the ones imposed by section 2 of the HRA, and therefore, without the presence of a strong reason, they should not weaken or dilute the effects of the case law from Strasbourg, at the same time, the member States can provide for rights that are more generous as compared to the rights provided by the Convention but these provisions should not be the result of interpretation of the convention by the domestic courts, due to the reason that the meaning of different provisions of the Convention should remain uniform in all the states that are party to it. In this way, the approach of “no less and no more” has been used in R (Al-Skeini) v Secretary of State for Defence[13] under international law. In this case, the 5 claimants who were relatives of the Iraqi nationals, killed in Iraq. However the court arrived at conclusion that the claim needs to be dismissed because it was beyond the jurisdiction of article 1, under the heading of ‘extra-territorial doctrine of effective control over an area exception’. In the same way, the court also stated that it was beyond the scope of the Human Rights Act due to the reason that the Act needs to be construed in view of the present background of the convention and also the Strasbourg jurisprudence.[14]
In the same way, in the case titled, R (Al-Jedda) v SSD[15], the judicial discretion regarding the cases concerning international law and its impact on human rights was also discussed. The issue was the right to liberty and security that has been provided by schedule 1, article 5 of the HRA had been displaced regarding a dual British and Iraqi national who was imprisoned in Iraq. Therefore it can be said that on the basis of the decision given in this case as well as in Al Skeini, the parliamentary sovereignty has been weakened to some extent as these decisions reveal that the courts give preference to the cases dealing with international law. As a result, on the basis of the fact that the court gives preference to international law as compared to the domestic law, it means that the parliament is no longer to be considered as the supreme lawmaker.[16]
Another important feature of the HRA is the ‘interpretive obligation’ that has been mentioned in section 3. The most frequent use of this act is likely to be interpretive because the second requires that the courts should interpret statutory provisions as well as the common law in such a way that is compatible with the rights provided by the convention. At the same time, the Act provides in section 3(1) that “so far as possible, primary legislation and subordinate legislation needs to be read and given effect in such a way that is compatible with the rights provided by the convention”. This provision has an impact on all the cases, including civil and criminal, public or private or the cases against public authorities or private legal persons, whenever a right provided by the convention is at stake. However the important words related with the interpretive obligation prescriber section 3(1) is ‘so far as possible’ and ‘must’ which suggests that an alternative is available.
Another important provision in this regard is section 4 which provides a remedy of the ‘declaration of incompatibility’. It can be applied where the court finds it difficult to interpret a particular statutory provision in such a way that it complies with a convention right. For example in R v A (No.2)[17], which was mentioned by Lord Steyn that a declaration of incompatibility has to be considered as a last resort and therefore it should be avoided unless it becomes impossible to do so. However it needs to be noted that section 4(6)(a) also states that the declaration of incompatibility does not have an impact on the validity of the legislation. Similarly, the declaration of invalidity is not binding on the parties to the proceedings as provided by section 4(6)(b). It was demonstrated in Burden v United Kingdom that as a remedy, it has proved to be ineffective. In this case, the issue was if the siblings who had lived together throughout their life, should have inheritance tax relief as is available to married couples and several partners. In this context, it was argued by the payments that it amounted to a violation of article 14 of ECHR. The courts did not consider that it could be expected in the case that the applicants should have brought a claim for a declaration of incompatibility in accordance with section 4 before bringing their application to the European Court of Human Rights, as the remedy depended on the discretion of the executive and earlier it was found to be infected by the courts in Hobbs v United Kingdom.[18] Due to the fact that the applicants were directly impacted by provision of domestic law and at the same time, no domestic remedy was available which should have been exhausted first of all by them, the court held that the six-month time limit to bring the case before the European Court of Human Rights was not applicable.
In case of the enactment of legislation, it has been provided with section 19 of the HRA that at the time of the introduction of the Bill in the Parliament, the Minister in charge asked to make a statement regarding compatibility before the second reading of the Bill and in this statement, it should be revealed how the Bill complies with the provisions of the Convention.[19] In this way, it can be said that restraints have been put on parliamentary sovereignty due to the reason that it requires that the Convention rights should be incorporated as the early stages of enacting a particular legislation.[20] But in this regard it needs to be noted that it will be deceptive to claim that this provision precludes the Parliament from passing a legislation due to the reason that the statement of noncompliance can be delivered which reveals the conflicts present between the proposed Bill and the ECHR rights and also the reasons for the noncompliance of the Bill with these rights.[21]
In the end, it can be said that the Human Rights Act has been successful in achieving the desired balance as it retains the right of the Parliamentary enact legislation even if it is incompatible with the rights provided by the Convention.[22] But in this regard, it also needs to be noted that as a result of section 4 of HRA, the political capacity has been significantly reduced due to the reason that the declaration of compatibility serves as a political or even as a moral disincentive to enact a law that is incompatible with the convention rights.[23] However it is still open for the government regarding how it deals with the relevant decisions of the courts in this regard. If it considers it appropriate, it can be done by the government by refusing to take steps for the purpose of limiting the incompatibility in accordance with section 5 of the Human Rights Act.[24]
Therefore, while the Parliament is still sovereign but as a matter of constitutional practice, considerable amount of power has been transferred to the judiciary as a result of the introduction of HRA. Although it has been mentioned in section 6(3)(b), the Parliament is not bound by the provisions of Section 6 and s 7 of the Act and in this way, the Parliament is not accountable for its actions. The result of this position is that the Parliament is can still use the cover provided by the ‘will of the electorate’.
On the other hand, it also needs to be noted that still the government is accountable for its actions during the reason that its bodies are considered as the public authorities and as a result, have been constrained by section 6 and section 7 of the Act. Due to this reason, the government cannot use the will of the electorate as a ‘cover’ for its actions.
Bradley, ‘The Sovereignty of Parliament – Form or Substance?’, in J. Jowell and D. Oliver, The Changing Constitution (7th ed.) (OUP, 2007), 25
Kavanagh, ‘The elusive divide between interpretation and legislation under the Human Rights Act 1998’ (2004) 24(2) OJLS 259
Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 Oxford Journal of Legal Studies 157
Young, “Judicial Sovereignty and the Human Rights Act 1998” [2002] CLJ 53
Gearty, ‘Reconciling Parliamentary Democracy and Human Rights’ (2002) 118 LQR 248
Harlow and R. Rawlings, Law & Administration (3th ed.) (OUP, 2009).
Anderson, ‘Shfting the Grundnorm and Other Tales’, in D. O’Keefe and A. Bavasso, Judicial Review in European Union Law (Kluwer, 2000)
J.A.G. Griffith, ‘The Political Constitution’ (1979) 42 Modern L. Rev. 1, 19
Lord Woolf, ‘The Rule of Law and a Change in the Constitution’ (2004) 63 Cambridge LJ 317-330
Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’, in M. Loughlin and S. Tierney, The Paradox of Constitutionalism (OUP: 2008)
Loughlin, The Foundations of Public Law (OUP, 2010).
Craig, ‘Formal and Substantive Concepts of the Rule of Law’ [1997] Public Law 467
Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).
Rawlings, ‘Review, Revenge and Retreat’ (2005) 68(3) Modern Law Review 378-410
Sedley, ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 Law Quarterly Review 270
Campbell, K. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001)
Hickman, ‘In Defence of the Legal Constitution’ (2005) 55(4) University of Toronto Law Journal 981-1022
Hickman, ‘In Defence of the Legal Constitution’ (2005) 55(4) University of Toronto Law Journal 981-1022
Case Law
Do v. Secretary of State for the Home Department [2004] UKHL 26
Hobbs and others v United Kingdom – [2006] All ER (D) 178
R (Al-Skeini) v Secretary of State for Defence (2007) UKHL 26
R (GC) v Commissioner of Police for the Metropolis [2011] UKSC 21
R v A (No 2) [2001] UKHL 25
R. (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58
[1] A. Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 Oxford Journal of Legal Studies 157,
[2] J.A.G. Griffith, ‘The Political Constitution’ (1979) 42 Modern L. Rev. 1, 19
[3] R. Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).
[4] T. Hickman, ‘In Defence of the Legal Constitution’ (2005) 55(4) University of Toronto Law Journal 981-1022
[5] M. Loughlin, The Foundations of Public Law (OUP, 2010).
[6] R. Rawlings, ‘Review, Revenge and Retreat’ (2005) 68(3) Modern Law Review 378-410
[7] Lord Woolf, ‘The Rule of Law and a Change in the Constitution’ (2004) 63 Cambridge LJ 317-330
[8] C. Harlow and R. Rawlings, Law & Administration (3th ed.) (OUP, 2009).
[9] T. Campbell, K. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights (Oxford University Press, 2001)
[10] M. Loughlin, ‘Constituent Power Subverted: From English Constitutional Argument to British Constitutional Practice’, in M. Loughlin and S. Tierney, The Paradox of Constitutionalism (OUP: 2008)
[11] P. Craig, ‘Formal and Substantive Concepts of the Rule of Law’ [1997] Public Law 467
[12] Do v. Secretary of State for the Home Department [2004] UKHL 26
[13] R (Al-Skeini) v Secretary of State for Defence (2007) UKHL 26.
[14] S. Sedley, ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 Law Quarterly Review 270
[15] R. (Al-Jedda) v Secretary of State for Defence [2007] UKHL 58
[16] T. Hickman, ‘In Defence of the Legal Constitution’ (2005) 55(4) University of Toronto Law Journal 981-1022
[17] R v A (No 2) [2001] UKHL 25
[18] Hobbs and others v United Kingdom – [2006] All ER (D) 178
[19] D. Anderson, ‘Shfting the Grundnorm and Other Tales’, in D. O’Keefe and A. Bavasso, Judicial Review in European Union Law (Kluwer, 2000)
[20] A. Bradley, ‘The Sovereignty of Parliament – Form or Substance?’, in J. Jowell and D. Oliver, The Changing Constitution (7th ed.) (OUP, 2007), 25
[21] R(GC) v Commissioner of Police for the Metropolis [2011] UKSC 21
[22] A. Kavanagh, ‘The elusive divide between interpretation and legislation under the Human Rights Act 1998’ (2004) 24(2) OJLS 259
[23] A. Young, “Judicial Sovereignty and the Human Rights Act 1998” [2002] CLJ 53
[24] C. Gearty, ‘Reconciling Parliamentary Democracy and Human Rights’ (2002) 118 LQR 248
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