The Human Rights Act 1998 and Parliamentary Sovereignty - Essay Example

?The Human Rights Act 1998 and Parliamentary Sovereignty Although Section 3 of the Human Rights Act 1998 provides for a limitation on the court’s power, in practice it appears as though it is the courts rather than Parliament that ultimately determines the extent to which human rights can be enforced and protected.1 Section 3(1) of the Human Rights Act 1998 provides that courts are required to interpret national legislation in such a way as to ensure that they are consistent with human rights under the European Convention on Human Rights.2 However, in practice Parliament seemingly ceded parliamentary sovereignty relative to Convention rights to the judiciary. As Young notes, Section 3(1) of the Human Rights Act 1998 “could have the same effect as if it impliedly repealed the provisions of all statutes” that are inconsistent with Convention rights.3 Some members of the judiciary have expressed concerns over how the judiciary’s enhanced role under the Human Rights Act 1998 can be applied in a manner that corresponds with Parliamentary sovereignty.4 Goldsworthy however, argues that concerns about the Human Rights Act 1998 usurping Parliamentary sovereignty and introducing judicial sovereignty are unfounded. The Human Rights Act 1998 does confer unprecedented authority upon the judiciary in terms of interpreting statutes so as to render them consistent with Convention rights. At the same time, the Human Rights Act 1998 does not provide the judiciary with the authority to “disapply” or “invalidate” those statutes.5 Moreover, Parliament reserves the right to repeal the Human Rights Act 1998 under the auspices of Parliamentary sovereignty.6 Feldman takes a similar position to that of Goldsworthy. Feldman argues that the Human Rights Act 1998 does introduce “substantive, constitutional values” via the umbrella of Convention rights.7 According to Feldman’s argument, despite the fact that the 1998 Act introduces new constitutional and substantive values, they are not incompatible with existing rights and the Human Rights Act is designed to correspond with the UK’s constitutional conventions and “principles”.8 In this regard, the Human Rights Act 1998 represents “evolutionary rather than revolutionary change”.9 Feldman’s argument finds currency in Lord Hope’s observation in Jackson v Attorney-General. Lord Hope observed that: The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.10 Therefore from Lord Hope’s perspective, Parliamentary sovereignty has evolved with the implementation of the Human Rights Act 1998 and has not altered the UK’s constitutional principles and values. Lord Steyn, however alludes to a dual sovereignty shared by the judiciary and Parliament as a result of the Human Rights Act 1998.11 Keene argues that the Judiciary under the deference principles implicit in the Human Rights Act 1998, attempts to strike a fair balance between individual rights and “the need to respect Parliament’s proper function”.12 This balancing act can be observed in the judgment of Laws LJ in International Transport Roth GmbH v Secretary of State for the Home Department. In this case Laws LJ set fourth four guiding principles for judicial application and interpretation of Convention rights under the authority permitted by the Human Rights Act. To begin with, the courts must give deference to Acts of Parliament rather than to executive or other official decisions and measures. Secondly, there will be no deference in instances when the Convention calls for a fair balance or where the rights under the Convention are absolute. Thirdly, where parliament will be given deference in instances where the manner is within their constitutional prevue and less deference will be given when the matter is within the judiciary’s constitutional prevue. Finally: Greater or less deference will be due according to whether the subject matter lies more readily within the actual or potential expertise of the democratic powers or the courts.13 Lord Woolf however, appeared to have a different view of the correct balance to be struck between when interpreting and applying the Human Rights Act 1998. According to Lord Woolf, any decision which requires ascertaining or giving effect to public interests, the courts are required to give deference to Parliament in a manner consistent with the UK’s constitutional values and principles.14 Clearly, the judiciary is divided as to the extent to which the Human Rights Act 1998 has enhanced their respective powers under the UK’s constitution and how that enhancement requires deference to Parliament or judicial authority. It would therefore appear that to some extent, the Human Rights Act 1998 has indeed created a duality in terms of shared sovereignty between the judiciary and Parliament in the area of Convention rights. It must be remembered however, that this duality of shared sovereignty if it does exist as argued, it only exist because of an Act of Parliament: the Human Rights Act 1998. In this regard, the constitutional principles attending Parliamentary sovereignty have not been undermined by the enactment of the Human Rights Act 1998. As a result of the constitutional principles of Parliamentary sovereignty, Parliament is at liberty to repeal the Human Rights Act 1998. Lord Chancellor and Minister of Justice Jack Straw recognized that the enhancement of the judiciary under the Human Rights Act 1998 was a manifestation of the “fundamental position established” by the UK’s constitution: parliamentary sovereignty.15 Again this is no more than a recognition and endorsement of the view that it is through Parliamentary sovereignty that the role of the judiciary can be enhanced by the Human Rights Act 1998. It is also through Parliamentary sovereignty that the judiciary’s role can be decreased in terms of enforcing and recognizing Convention rights. Kavanagh explains how the doctrine of Parliamentary sovereignty is preserved despite the constraints currently perceived under the Human Rights Act 1998 and the impact of joining the EU. According to Kavanagh: Parliament is still sovereign because it chose to join the EU (accepting all the constraints which went along with that membership), but could also express its sovereignty by removing itself from the EU.16 Likewise, it was via an Act of Parliament, specifically, the Human Rights Act 1998 that permits the judiciary to take on a somewhat “legislative function” in the interpretation of the UK’s current and past legislative provisions so as to ensure that they are consistent with rights established under the European Convention on Human Rights.17 Even so, it has been argued that the implementation of the Human Rights Act 1998 will by introduce constitutional reforms by implanting different values and a different method of referencing public law in the UK. The manner in which the Human Rights Act seeks to enforce human rights will no doubt alter the constitutional principles of Parliamentary sovereignty.18 Lord Slynn makes a similar observation in R v Lambert where he stated that: If the courts are to give full effect to the HRA, long or well entrenched ideas may have to put aside, sacred cows culled.19 Still there are members of the judiciary that are reluctant to admit that Parliamentary sovereignty under the constitutional principles and values of the UK’s constitution have been altered by the introduction of the Human Rights Act 1998, Lord Steyn stated in R v DPP, ex P. Kebilene that: It is crystal clear that the carefully and subtly drafted Human Rights Act 1998 preserves the principle of Parliamentary sovereignty. In a case of incompatibility, which cannot be avoided by interpretation under Section 3(1), the courts may not disapply the legislation. The court may merely issue a declaration of incompatibility…20 In other words, the Human Rights Act 1998 is nothing more than a statute which remains a creature of parliamentary sovereignty. Lester however, questions whether or not the Human Rights Act 1998 can be regarded as any other Act of Parliament. By its very nature it goes to the heart of the UK’s constitution in terms of the definition and protection of human rights and the rule of law.21 Moreover, the Human Rights Act 1998 is supreme in that it renders other legislative provisions subordinate to it.22 Be that as it may, members of the judiciary continue to hold fast to the view that it is only through Parliamentary sovereignty that Parliament was able to implement the Human Rights Act and to confer upon the judiciary some degree of legislative function. Lord Hoffmann noted the prevailing view that Parliamentary sovereignty “means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights” and the implementation of the Human Rights Act 1998, does not alter this position.23 At the same time, the Human Rights Act 1998, means that Parliament has limited its own supremacy by virtue of a document with constitutional value.24 In the final analysis, it is widely accepted that the Human Rights Act 1998 issued in a new era of constitutional reform in the UK. It permits the judiciary to share some responsibility in the interpretation and protection of human rights under the European Convention on Human Rights. At the same time, Parliament has placed constraints on the enhanced role of the judiciary by withholding the right to invalidate a legislative provision that is inconsistent with Convention rights. There is also a prevailing view that Parliament’s authority to enhance the judiciary’s role emanates from Parliamentary sovereignty which can be used to repeal the Human Rights Act 1998. However, since Parliament recognizes the political costs of repealing Convention rights or any form of human rights protection it is likely that the separation of powers and the duality of sovereignty between the judiciary and Parliament under the Human Rights Act will not result in a repeal of the Act. It is therefore realistic to argue that the Human Rights Act has changed the constitutional structure of the UK by sharing sovereignty between the judiciary and Parliament relative to the protection of Convention rights. Bibliography Textbooks Goldsworthy, J. Parliamentary Sovereignty: Contemporary Debates. (Cambridge University Press, 2009). Kavanagh, A. Constitutional Review under the UK Human Rights Act. (Cambridge University Press 2009). Martinico, G. The National Judicial Treatment of the ECHR and EU Laws, (Europa Law Publishing 2010). Articles/Journals Feldman, D. ‘The Human Rights Act 1998 and Constitutional Principles.’ (1999) 19(2) Legal Studies, 165-206. Keene, D. ‘Principles of Deference Under the Human Rights Act’. Cited in H. Fenwick; G. Phillipson and R. Maserson, (eds) Judicial Reasoning under the UK Human Rights Act. (Cambridge University Press) Ch. 8. Lester, A.‘The Magnetism of the Human Rights Act 1998.’ Cited in I. Richardson and D. Carter, (eds) Roles and Perspectives in the Law: Essays in Honour of Sir Ivor Richardson. (Victoria University Press 2002). Young, A.L. ‘Judicial Sovereignty and the Human Rights Act 1998’. (2002) 61(1) The Cambridge Law Journal, 53-65. Table of Cases International Transport Roth GmbH v Secretary of State for the Home Department [2002]3 WLR 344. Jackson v Attorney-General [2005] UKHL 56. R v Lambert [2002] QB 1112. R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115. Reg. v DPP ex parte Kebilene [2000] 2 AC 226. Table of Statutes Human Rights Act 1998. Read More