Has the Human Rights Act (1998) led to a more pronounced judicial intervention into politics?
University of London Common law reasoning and institutions Essay:Has the Human Rights Act (1998) led to a more pronounced judicial intervention into politics? Submitted by: Student name: Syeda Sabita Amin
Has the Human Rights Act 1998 led to a more pronounced judicial intervention intopolitics?Human rights are universal, indivisible and interdependent. They are what make ushuman. It is the most important gift given at birth, and allows us to speak and commitlegal and constitutional acts freely. As for politics, politics can be defined as socialrelations involving intrigue to gain authority or power1.One of the weightiest developments in the constitution of the English Legal system wasthe introduction of the Human Rights Act 1998. The major source of fundamental rightsin English law is now undoubtedly the Human Rights Act 1998 (HRA) whichimplements the European Convention on Human Rights (ECHR) into English law.Although the UK with other European states signed the ECHR in 1951, it presumed itselfhaving a strong record in the field of civil liberties. However, by the end of the century itwas seen that there were a series of judgments against the decisions taken in the UKCourts in the European Court of Human Rights in Strasbourg. This created a favourablemovement for a new „Bill of Rights‟ by the Labour Party‟s Jack Straw and thus came intobeing the Human Rights Act.The Human Rights Act (HRA) is an act of parliament which received the royal assent onthe 9th November 1998 and came into force on the 1st of October 2000. The reason forthis delay was so that the courts throughout the hierarchy, from the lower courts such asmagistrate‟s courts all the way up to the House of Lords could be adequately trained inthe effect of the Act. The aim of this act was to incorporate rights that were availablewithin the ECHR and fundamental freedoms into UK law. However, the act reflects amove towards the entrenchment of rights recognized under the Convention but, given thesensitivity of the relationship between the elected Parliament and the unelected judiciary,it has been thought expedient to minimize the change in the constitutional relationship ofParliament and the judiciary2.The HRA has no higher status than other Acts of Parliament in accordance with thedoctrine of parliamentary sovereignty. It is not possible for courts to override primarylegislation that is incompatible with convention rights, or to declare it unconstitutional.This act has to a certain point changed the role of judges. As a result, judges are now seenas more proactive and outspoken on Human Rights issues, than they were in the pastwhere they had not exercised a significant amount of independent constitutional power. Itshould not be mistaken that judges did not play a role prior the act.While the Act was passed to give further effect to the articles of the ECHR, it should benoted that the act was carefully drafted in order to uphold parliament sovereignty while atthe same time show the citizens that they were protected. Certain sections of the Actstrike a lawman more than the regular layman. The Act carefully conservedparliamentary sovereignty in the sense that courts are unable to strike down legislation onthe ground of an incompatibility with a Convention right under the Act.1 Definition of politics from Google.com2 Page 28, The English Legal System 8th Edition, Slapper & Kelly
Section 2 of the HRA requires future courts of the English Legal system to take intoaccount previous decisions held in Strasbourg, rather than only sticking to the doctrine ofbinding precedent. The provision of the act effectively sanctions the overruling of anyprevious English court authority that was in conflict of the decisions held in ECtHR. Onthe other hand, this section was overruled during the case of Price V Leeds City Council3when the decision held in the House of Lords was considered rather than that of theECtHR.Thereafter Section 3 requires everyone (not only courts and tribunals, but alsoadministrative and other bodies which have to interpret legislation) to read and giveeffect to legislation, so far as possible, in a manner compatible with Convention rights.Two important cases revolve around this section. The first being of Ghaidan v Godin-Mendoza4 and second being of R. v A5. The application of section 3 in Ghaidan V Godin-Mendoza, the House of Lords by majority held that the survivor of the same sexpartnership had the same status as the spouse of a protected tenant entitled to succeed onthe tenant‟s death, as a statutory tenant. Lord Styen said that given section 3 wassupposed to be the principle reminded measure and section 4 to bet he last resort.Nevertheless, in the case of R v A, two of the judges had different views about themeaning of “possible”. Lord Steyn said that unless a "clear limitation on Conventionrights is stated in terms" it should be possible to interpret an Act compatibly with theECHR. Lord Hope however argued that you have to look at the meaning and purpose ofan Act as a whole, not just any express intention on behalf of Parliament as to whether itis possible to interpret a statute compatibly with Convention rights or not. The House ofLords agreed with the statement Lord Hope made and restored judicial discretion as towhat could be raised in cross examination in rape cases6. By contrast Lord Hope‟sposition taken in both R v A and R v Lambert7 is that legislation cannot be madecompatible with the ECHR if it contains provisions which, either expressively or bynecessary implication, contradict convention rights. Lord Hope seems to foresee a greaterneed for the court to rely on its powers to grant a declaration of incompatibility.If interpretation to achieve compatibility is not “possible”, then the court is empowered toissue a declaration of incompatibility under Section 4 of the HRA, allowing the electedbranches the choice of whether or not to remedy the finding of incompatibility. Section 4authorizes the courts to give a declaration of incompatibility in relation to legislation. Inintroducing the Bill to the House of Lords, Lord Irvine rather finessed the consequencesof such action. Of a declaration of incompatibility, he said: “The statute will continue toapply despite its incompatibility. But the declaration is very likely to prompt thegovernment and Parliament to respond.” Of the failure by ministers to make a statementof compatibility, he said only: “Where such a statement cannot be made, Parliamentaryscrutiny of the Bill would be intense.” He omitted the likely legal consequence that an3 Lexis Library Price Price and others v Leeds City Council  EWCA Civ 2894 Lexis Library Ghaidan v Godin-Mendoza -  UKHL 305 Lexis Library R v A -  UKHL 25,6 Page 34, Gary Slapper & David Kelly (2006) – The English Legal System (8th Edition) ISBN 1-84568-034-07 Lexis Library R v Lambert  UKHL 37
appeal would be made to the European Court whose decision the government was boundby treaty to implement. Thus, a declaration preserves the theory of parliamentarysovereignty but does not, of course, affect the reality that even David Cameron does notwish to challenge, of our membership of the Council of Europe and, indeed, therequirement on members of the European Union to respect the European Convention onultimate pain of expulsion (Article 6 Treaty of Amsterdam).8Additionally, Section 5 requires for the Crown to be notified when a court considersissuing declaration of incompatibility and the appropriate minister is entitled by the partyto the case of reference.Furthermore Section 6 declares it unlawful for any public authority to act in a way whichis incompatible with the ECHR. And if there is such a violation, Section 7 enables anyperson, with standing, to raise an action against a public authority which has acted orproposes to act in such a Convention-contravening manner. A person will have standingto do so provided they would satisfy the "victim test" stipulated by Article 34 of theConvention. Subsequently, Section 8 empowers the court to grant such relief or remedyagainst the public authority which is in breach of the Act as it considers just andappropriate. However, if a public authority is acting under the guidance of some primarylegislation, that is itself incompatible with the ECHR, the public authority will not beliable under the Section 6.Finally section 19 requires a Minister in charge of a Government Bill to make a statementbefore Second Reading as to whether the Minister considers the Bill to be compatiblewith the Convention rights. If such a statement cannot be made, the responsible Ministermust make a statement that the Government wants Parliament to proceed with the billregardless of the inability to make a statement of compatible.9The reality today is that judges DO play a role in politics shielded by the words "commonlaw" and "policy". As the years progress for the act, judges bear the responsibility to„develop‟ the law with the Human Rights Act, but keeping parliament sovereignty inmind. One question that comes to thought is that how the judges will draw the boundarylines between section 3 and section 4 of the act. Where the line would be drawn that anact even after been taken „so far as possible‟ be declared „incompatible‟? Only judgesthemselves can draw themselves within that fine line and decide how far into politics theywould like to take their legal decisions with their own discretion. Nevertheless, it isdefinitely certain that the HRA is meant to preserve the distinction between interpretationand the enactment of statues.108 Westlaw UK: Roger Smith (2006) – Human Rights and the UK Constitution: Can Parliament legislate“irrespective the Human Rights Act?”, Legal Information Management9 Julie Debeljak (2003) – The Preservation of Parliamentary Supremacy in the context of rights protection,Australian Journal of Human Rights10 Page 117 Adam Geary, Wayne Morrison & Robert Jago (2009) –The Politics of the Common Law Perspectives, Rights, Processes, InstitutionsISBN 978-0-415-48153-3
BIBLIOGRPAHY1. Adam Geary, Wayne Morrison & Robert Jago (2009) –The Politics of the Common Law Perspectives, Rights, Processes, InstitutionsISBN 978-0-415-48153-32. Gary Slapper & David Kelly (2006) – The English Legal System (8th Edition) ISBN 1-84568-034-03. James Holland & Julian Webb (2006) – Learning Legal Rules (6th Edition) ISBN 978-0-19-928250-04. David Jenkins (2009) – Common Law Declarations of unconstitutionality,International Journal of Constitution (Westlaw UK)5. Randal N.M. Graham (2009) – What Judges want: judicial self-interest and statutoryinterpretation, Statute Law Review6. Sangeeta Shah & Thomas Poole (2009) – The impact of the Human Rights Act on theHouse of Lords, Public Law7. Tom Hickman (2008) – The courts and politics after the Human Rights Act: Acomment, Public Law (Westlaw UK)8. Sandra Fredman (2006) – From deference to democracy: The role of equity under theHuman Rights Act 1998, Law Quarterly Review (Westlaw UK)9. Roger Smith (2006) – Human Rights and the UK Constitution: Can Parliamentlegislate “irrespective the Human Rights Act?”, Legal Information Management(Westlaw UK)10. T.R.S. Allan (2006) – Human rights and judicial review: a critique of “duedeference”, Cambridge Law Journal (Westlaw UK)11. Julie Debeljak – The Preservation of Parliamentary supremacy in the context of rightsprotection, Australian Journal of Human Rightshttp://www.austlii.edu.au/au/journals/AJHR/2003/10.html#Heading5912. Mark Evans – New Labour and a Rise of a new Constitutionhttp://www.york.ac.uk/depts/poli/staff/mge/2008%20PSA%20Paper%20on%20Constitutional%20Reform.pdf