The Significance of the Human Rights Act 1998 - Essay Example

?Human Rights Act 1998 The Human Rights Act 1998 has not been entrenched constitutionally. As such, judges are empowered to strike down secondary legislation, but this does not extend to primary legislation. With regard to primary legislation, courts can issue a declaration of incompatibility, whenever the rights and the primary legislation are incompatible. Thereafter, it is up to Parliament to take suitable action, if deemed necessary.1 In its White Paper, the UK Government clarified that the Human Rights Act 1998 was aimed at providing a novel basis for the interpretation of every piece of legislation by the judiciary. However, the Government also declared that there was no intention to provide a basis for striking down any portion of it. Nevertheless, the judiciary has been empowered to rescind secondary legislation that does not comply with the provisions of the European Convention on Human Rights.2 Exceptions to this principle arise when the parent statute does not permit such repealing. Legislation has to be interpreted, to the extent possible, in a manner that renders it compatible with the European Convention on Human Rights. This is the purport of Section 3 of the Human Rights Act 1998. However, Section 4 of this Act states that if the court concludes that such interpretation is not possible, then a formal declaration of incompatibility can be made by the court. 3 The law does not undergo a change, nor does the litigant win a case, on account of a declaration of incompatibility. However, such declaration should result in a dialogue with the Government, which in turn could result in the law being changed appropriately. The Human Rights Act 1998 provides an expeditious procedure for revising legislation, if there is a declaration of incompatibility. This is as per the provisions of Section 10 of the Human Rights Act 1998. 4 In several of the cases involving the Human Rights Act 1998, the courts have frequently been seen to defer to the other branches of the government. It has been contended by many scholars that this is flawed and unprincipled, and that a principled approach should be adopted by the courts, in such cases. 5 In the words of Kavanagh, statutes such as the Human Rights Act 1998 ostensibly provide finality to Parliament. However, they also permit the courts to undertake constitutional review, and this is akin to the powers made available to the Supreme Court of the United States of America. There are several important facts that are to be taken into consideration. 6 The first of these is that all final declarations of incompatibility either have been addressed by the Government of the UK or are in the process of being resolved. Despite delay in some instances, there is not a single instance, wherein the Government has ignored an issue or declared that it would not remedy it. This makes it politically impossible to challenge the courts in the UK. In addition, the Human Rights Act 1998 involves the latent additional legal cost of an application to the European Court of Human Rights. 7 Another important fact to be considered is that the courts consider Section 3 of the Human Rights Act 1998 to consist of an interpretive duty that is very strong and which constitutes the principal remedy for the violation of rights under this Act. This has reduced the reliance of the courts on Section 4 declarations of the Human Rights Act 1998, which constitutes the primary structural vehicle of the legislature. In addition, the courts have effectively made Parliament to comply with the rights provided by the Convention. Moreover, the courts have interpreted Section 3 of the Human Rights Act 1998 that transcends the rewriting of statutes.8 This has rendered it a unique technique for safeguarding rights under the Human Rights Act 1998. In addition, Section 3(1) of the Human Rights Act 1998, declares that to the extent possible, all legislation must be interpreted and given effect in a manner that is compatible with the rights provided by the Convention. It is important to realise that the rights provided by the European Convention on Human Rights, do not supersede statutory provisions, as is the case with the provisions of the European Community law that have a direct effect.9 What is required is that statutory provisions should be interpreted in a manner that is compatible with the Convention, which may not be possible under all circumstances. From its very inception, the judiciary had conceded that the underlying objective of Section 3 of the Human Rights Act 1998 was to progress significantly beyond extant rule that permitted the courts to consider the provisions of the Convention, while resolving uncertainty in legislative provisions. Thus, the House of Lords had declared that Section 3 of the Act had induced them to alter the interpretation of certain statutory provisions that had otherwise been devoid of ambiguity. 10 It has not been possible to provide an interpretation under Section 3 of the Act, in situations wherein the statute incorporated an incompatibility with the Convention that had been expressed by necessary implication or in terms. All the same, necessary implication tends to be an unclear notion. A certain amount of flexibility is displayed by judges with regard to strictness of the grounding that an essential implication has to possess in the statutory text. It is more beneficial to compare the differing degrees of purposive interpretation. The mere contention that a statute is incompatible with the Convention, on account of necessary implication, fails to throw light on the interpretative method adopted by the judge, and merely declares the conclusion reached by that judge. 11 For instance, in Ghaidan v Godin – Mendoza,12 the House of Lords affirmed the entitlement of an individual to succeed to the tenancy of his departed same – sex partner. This is as if the deceased had been the spouse of that person. 13 With regard to the ramifications of the decision in Ghaidan, it is important to comprehend that the court’s ruling served to amend the Rent Act 1977. This was achieved by the inclusion of homosexual partners in the relationships that would enable the survivor to acquire the status of the statutory tenant, when the original tenant expired. One of their Lordships, namely Lord Millet, raised the objection that the interpretation arrived at by the court was in clear contradiction of the implicit requirements of the statute that the partners had to be of the opposite gender. Nevertheless, the revision effected by the majority of that court was justified, as the provisions would have breached the provisions of Articles 8 and 14 of the Convention relating to the survivors of homosexual partnerships.14 In addition, no convincing reason could be produced to justify such discrimination. Moreover, with their Lordships’ ruling in Kebilene,15 deference developed as a judicial doctrine under the Human Rights Act 1998. This doctrine was employed by the courts to reject claims regarding the breach of Convention rights in several cases. In most of the cases, deference is employed to support the judgement of the court. Thus, in McIntosh,16 Lord Bingham held that the provision in the Proceeds of Crime (Scotland) Act 1995, which permitted seizure of the assets of convicted drug dealers was not to be summarily rejected, as it had been approved by a democratically elected Parliament. 17 As such, the courts have approved the incompatible provisions of the legislation, under the concept of deference. Based on this line of argument, it has been contended that deference is relevant, as a decision maker is democratically responsible for the decision taken by him. At the same time, attention has been drawn to the notion that the Convention attempts to restore an equitable balance between the requirements of protecting the fundamental rights of individuals and the demands relating to the general interest of the community. The most appropriate forum for achieving such balance is the Parliament. 18 Thus, in Martinez, the Divisional Court arrived at a decision that was in deference to the relevant primary legislation. This decision attracted criticism on the following grounds, namely that the Court had deferred to a legislative decision that had been made in the year 1870, which was prior to the advent of universal franchise in the UK. Another ground was that the law deferred to predated the enactment of the Human Rights Act 1998, by a considerable period. This made deference questionable. 19 Despite being subject to periodic review this provision had continued to be re – enacted from that time. As such, Section 3(1) of the Human Rights Act 1998 enjoins that statutes are to be interpreted in such a way that there is no incompatibility with the Convention rights. Although this apparently restricts the powers of the judiciary, such interpretation has to comply with the Convention rights, only to the extent that this feasible. The situation obtaining in practice is markedly different; because Parliament has granted the judiciary complete discretion, in determining whether a statute can be interpreted such that it is compatible with the rights provided by the Convention. 20 Moreover, the wording of Section 3(1) of the Human Rights Act 1998 is ambiguous to the extent that it is not possible to arrive at the limits of possibility. This situation extends to the legislative history of this Act. In fact, the judiciary is at liberty to interpret Section 3(1) of this Act as rescinding the provisions of statutes that are contrary to the Convention rights. 21 Thus, the extent to which human rights are to be secured is determined by the judiciary and not the Parliament . However, the scope of Section 3(1) of the Human Rights Act 1998 is limited by the doctrine of parliamentary sovereignty. This is notwithstanding the wording of Section 3(1) of this Act, and there can be no construal whatsoever that the courts can don the role of legislators. Thus in Re S, 22 Lord Nicholls of Birkenhead stated that the demarcation between amendment and interpretation was breached, whenever a statutory provision was interpreted in a manner that was at marked variance to a fundamental aspect of an Act of Parliament. 23 In its earlier decision in R v A,24 the House of Lords had provided an interpretation of Section 3(1), which in the words of Lord Nicholls was to be rejected, as there could be no conflict with clear statutory words. This served to endorse parliamentary sovereignty over the Convention, as the supreme constitutional doctrine of the UK. 25 Therefore, any act by the judiciary under Section 3(1) of the Human Rights Act 1998, has to be limited to interpretation. Any attempt to provide a meaning to legislation that was at variance to the intention of Parliament in enacting that piece of legislation, could not be construed to be an act of judicial interpretation. As such, the judiciary in the UK has not been empowered to annul primary legislation. The UK has a longstanding and well – entrenched tradition of Parliamentary supremacy and public trust in Parliament. Therefore, the enactment of the Human Rights Act 1998 enabled Britain to protect human rights, by embracing a unique model. It is indeed conceivable that the influence of this Act on the customary schedule of the British Parliament could be significantly higher that the influence it exerts on the overall function of the judiciary. Parliament has after the implementation of this Act, commenced to scrutinise with care, the compatibility of the legislation to be enacted with the Convention. 26 Accordingly, the British courts may be inspired to issue declarations of incompatibility, on account of their being precluded from declaring primary legislation null and void. Moreover, the British courts enjoy judicial review power that is not pure. This could render them more active in the exercise of their powers, in comparison to courts in pure judicial review systems. Due to this robustness, the British courts could emerge as greater champions of civil liberties. Furthermore, the absence of empowerment to rescind legislation could mitigate some of the difficulties inherent in the separation of powers and the provision of justice, which have been encountered in the nations with a pure judicial review system. 27 Consequently, in addition to providing effective protection to the Convention rights, the Human Rights Act 1995 is also aimed at being compatible with Parliamentary sovereignty. The UK Government has been seized with promoting and preserving the idea, that Parliament is empowered to enact or rescind any law. Some of the more important features of this Act are the procedure related to the declaration of incompatibility with regard to statutes, and the requirement of statements by ministers regarding the compatibility of Bills with the rights provided by the Convention. 28 However, Parliament is under no legal obligation to respond to a declaration of incompatibility under the provisions of the Human Rights Act 1998. Nevertheless, in the year 2004, Parliament consented to change the relevant legislation, subsequent to the finding of their Lordships in the Belmarsh case.29 The House of Lords had determined that detention without trial of certain categories of non – nationals suspected of being involved in terrorism was incompatible with Article 14 of the European Convention of Human Rights.30 There is a general misconception that Section 3 of the Human Rights Act 1998, authorises and calls for an interpretative approach. In the absence of this presumption, such approach would be deemed illegitimate and unprecedented. It is indeed difficult to perceive, the manner in which such a view could be consistent with upholding legislation that was not compatible with the Convention. Parliamentary sovereignty and the validity of a statute are seriously affected, whenever it is possible to change the meaning of a statute, during the exercise of an interpretative obligation. 31 It would be naive to presume that Parliament had wished for the courts to arrive at an interpretation that would be at marked variance with some basic feature of legislation. Accordingly, in Anderson,32 Lord Steyn declared that the provisions of Section 3 of the Human Rights Act 1998, were inapplicable to instances, in which the interpretation suggested was at variance to the explicit statutory words or if it was compulsorily contradicted by the statute. Moreover, in Lambert,33 the court held that Section 3 of the Act could not be relied upon if the legislation’s provisions unambiguously contradicted the meaning to be attributed to the enactment, in order to make it compatible with the Convention. 34 This was also deemed applicable to statutes containing provisions, which had that effect by necessary implication. Furthermore, in Simms,35 Lord Hoffmann resorted to the doctrine of Parliamentary sovereignty and declared that it was well within its authority for Parliament to pass laws that breached the basic principles of human rights, as long as this was done by means of explicit language. 36 In Britain, Constitutional thought suffers from ingrained ambivalence. This pertains to the competing notions of Constitution of Will and Constitution of Reason. As is evident from its very title, the Constitution of Will is primarily founded on Parliamentary sovereignty that is absolute. 37 This sovereignty is from the formal point of view, supported by the Human Rights Act 1998. In this dispensation, it is viable for any of the fundamental rights provided by the Constitution to be set aside by the mere expedient of some explicit statutory command. By extrapolation, one arrives at the disturbing conclusion that even the entire edifice of legal protection could be demolished, via legislative repeal. The foundations of freedom in the UK are indeed unstable in the extreme; if such is the reconciliation arrived at by the Human Rights Act 1995, between human rights and public interest, and democracy and the rule of law. 38 These opposing notions of legal order were clearly demonstrated in the ProLife Alliance case.39 The England and Wales Court of Appeal had exhibited willingness to interpret the Broadcasting Act 1990 from the perspective of the fundamental principle of freedom of speech. However, the House of Lords insisted upon an interpretation that was independent of context and absolute, which was unaffected by the demands of legal principle. 40 During the 2001 general election, the Alliance party had broadcast images of aborted foetuses. This was not transmitted by the BBC and other broadcasters on the grounds that it would violate Section 6(1) of the Broadcasting Act 1990. This provision prohibited the transmission of material that was offensive to decency or good taste. The Appellate Court conceded that this case brought to the fore, several important issues, in the realm of freedom of speech. For instance, it dealt with the capacity of a political party to disseminate its message in an effective manner. This party was entitled to a free broadcast, during the general election. The refusal to broadcast this message was deemed an act of censorship of political speech. In addition, it was held by the Court of Appeal that recourse to the Broadcasting Act 1990 could not validate such censorship. 41 As such, the courts were the final guardians of the democratic framework, and this endowed them with a special responsibility to protect the freedom of political debate. It can be concluded that there is definitely a necessity for some form of deference; however, British cases present a defective version of this notion. There have been several occasions, wherein the courts have depicted an inappropriate degree of deference. As such, the purpose of Sections 3 and 4 of the Human Rights Act 1998 was defeated by an excessive application of deference by the courts. Section 3 of the Human Rights Act 1998 was intended to interpret the legislation and Section 4 to provide declarations of incompatibility. Due to the effective interpretative application of provisions under Section 3, the courts have reduced reliance on Section 4, which deals with declarations of incompatibility with the European Convention on Human Rights. Bibliography A v Secretary of State for the Home Department [2004] UKHL 56. Allan, TRS, 'Parliament's Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective', Current Legal Problems, vol. 59, no. 1, 2006, pp.27 – 50. Bendor, Ariel L & Zeev Segal, 'Constitutionalism and Trust in Britain: An Ancient Constitutional Culture, A New Judicial Review Model', American University International Law Review, vol. 17, no. 4, 2011, pp.683 – 722. 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