Impact the Human Rights Act 1988 Has Had in Relation to the UK Constitution - Coursework Example

Critically assess what impact the Human Rights Act 1988 has had in relation to the UK constitution.? The convention of Parliamentary supremacy is rooted within the British constitution as a fundamental limb of the separation of powers doctrine1. Constitutional convention in fact dictates that the judiciary is bound by Parliament and the case of R v Jordan2 asserted that the courts had no power to challenge the validity of Parliamentary legislation. Moreover, Dicey argues that there is no limit to the legislative competence of Parliament and that it is absolutely sovereign3 However, the incorporation of community law through the implementation of the European Communities Act 1972(the ECA), which expressly gives legal effect to EC law has led to the creation of what has been described as “a new legal order4”, directly attacking traditional constitutional convention of national sovereignty5. Section 2(4) of the ECA provides that “any legislation passed or to be passed… shall be construed and take effect subject to” the enforcement in the United Kingdom of directly effective rules of Community law. Section 3 further provides for a direct duty for UK courts to determine questions of community law in accordance with principles laid down by the case law of the European Court of Justice (ECJ). The threat to Parliamentary Sovereignty and the separation of powers from EC initiatives has further been fuelled by the implementation of the Human Rights Act 1998 (HRA). The implementation of the HRA was heralded by the Lord Chancellor as having “a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights”.6 By implementing the ECHR into domestic law, the HRA clearly impacts and changes the constitutional landscape of the UK. The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. For the first time, the UK implemented a piece of legislation akin to a constitutional Bill of Rights, protecting essential human rights and freedoms7. Prior to 1998 there had been no British constitutional statement regarding basic human rights similar to those found in the constitutional provisions of other democracies8. This new human rights “Charter” now has direct legal effect and protection in the UK. The HRA has been labelled as one of the most important domestic legal developments for a generation9. Furthermore, section 2(1) of the HRA asserts that “A court or tribunal, determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights10. Moreover, whilst the HRA does not in fact implement any Bill of Rights as such, section 3(1) does impose a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts11”. Conversely, the established convention that Parliament cannot bind its successors has led commentators to argue that theoretically both the ECA and HRA could be repealed by Parliament and as such, do not in reality change the relationship between EC law, national supremacy and the separation of powers12. Whilst this may be so in theory, the political machinations of Government demonstrating a bias for cohesion and collaboration with the EC renders it highly unlikely that Parliament will repeal the ECA and the HRA on policy grounds13. This analysis will evaluate the development and application of HRA in UK law and consider whether the HRA is unconstitutional and anti-democratic. If we consider these developments regarding the tension between Community law and national sovereignty in context of the HRA, the UK courts have a positive duty to apply Convention rights. As such, section 3 of the HRA requires UK judicial authorities to interpret any legislation whether primary or subordinate in a manner which is compatible with Convention rights. Prior to the implementation of the HRA, the function of the courts in relation to Parliamentary legislation was limited to the interpretation and application of that which was placed before them14. The ECHR was not directly applicable to the English legal system. Even domestic courts had no jurisdiction to address human rights issues and citizens were required to bring expensive claims directly to the European Court of Justice (ECJ) in Strasbourg15. Prior to the implementation of the ECHR, the courts would exploit uncertainty in existing legal principles to incorporate Convention rights through the backdoor on public policy grounds16. For example, in the case of Waddington v Milar17, Lord Reid expressly referred to Article 7 of the Convention in reaching his determination exploiting ambiguity in existing legislation applicable to the case. However, the fundamental difference is that Parliamentary sovereignty was paramount, and prevented any significant increases in levels of human rights protection under national law prior to the HRA18. Moreover, Parliament was free to remove or control individual liberties at any time by passing appropriate legislation. For example, in the case of Malone v Metropolitan Police Commissioner19, it was asserted that there was no right to privacy in English law, which conflicts with the current legal position under the HRA. In the Malone case, the complaint regarding phone tapping during a police investigation was not upheld as there was no recognised right to privacy law in the UK. Conversely, this was held to be in direct contravention of the European Convention on Human Rights in Strasbourg. Moreover, in light of the decision in Ramanauskas v Lithunia20 (where entrapment was held to be in breach of the right to a fair trial) it is likely that the Malone decision would now lead to a judicial declaration of incompatibility under the HRA 1998. The direct incorporation of the ECHR into national law arguably goes further whereby the role of the judiciary is to act as guardian to individual human rights21. As such, it is argued that the HRA sets a new standard for all new legislation and provides essential powers to UK courts to enforce Convention rights, thereby forcing Parliament to change legislation that is incompatible22. This effectively, reverses the previous situation whereby Parliament could enact any legislation to prevent the judiciary from incorporating human rights principles de facto on public policy grounds. This arguably creates a shift in power from the legislator to the court, blurring the distinction between the constitutional separation of powers. To circumvent this obvious constitutional problem, Lord Irvine of Lairg’s comments during the Parliamentary debate on the HRA argues that the Act retains the classical principle of parliamentary sovereignty, while maximising protection to individuals23. Indeed the debates asserted that section 3(2) of the HRA guarantees that “courts are not empowered to strike down Acts of Parliament which they find to be incompatible with the Convention rights…. It is then for the government and Parliament to consider what action should be taken”24. On this basis, whist the HRA enables courts to rule a legislative provision is incompatible with the rights protected by the Convention; the principle of parliamentary sovereignty prevents courts from holding that provision invalid. As such, this clearly begs the question as to how efficacious the HRA is in protecting the fundamental freedoms guaranteed by the HRA. The interpretative obligations set out in section 3 of the HRA impacts all cases “civil or criminal, private or public, against private legal persons or public authorities” where a convention right is at stake. Prior to the Act, courts were permitted to solely use the Convention as an interpretive tool subject to express unequivocal Parliamentary intention to the contrary, which took precedence25. Now, the HRA imposes a statutory requirement that all legislation “must” be read and given accordingly with Convention Rights, so far as possible26. As such, this fuels the current debate regarding implied repeal, thereby further eroding the constitutional notion of Parliamentary sovereignty. Nevertheless, it begs the question as to whether the automatic result of this is to render the HRA unconstitutional and anti-democratic. Arguably, the very nature of a democracy is continuous evolution and improvement and to this end, the HRA could be viewed as a fundamental tool in the development of the British Constitution and preservation of the UK as a primary Western liberal democracy. On this basis, it is submitted that the HRA is not undemocratic and unconstitutional per se, however there is clearly a risk of it becoming undemocratic if not applied consistently. Lord Cooke of Thornton commented on the legal significance of the HRA by asserting “section 3 will require a very different approach to interpretation of that to which the English Courts are accustomed. Traditionally the search has been for the true meaning that would prevent the making of a declaration of incompatibility”27. Conversely, the new interpretative positive obligation provides one of the most essential components to protect human rights from being abused28. Section 3 applies to both primary and secondary legislation and legislation whenever enacted”. Indeed, R v A29 is often cited as a being of central importance for demonstrating applicability of the Section 3 obligation retrospectively30 and involved interpretation in a difficult and controversial legal area. In this case, the defendant was on trial for rape. The defendant wanted to admit evidence pertaining to a previous consenting sexual relationship with the victim, however section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibited this kind of evidence being adduced in order to protect a complainant’s private life31. The House of Lords held that the judge had a power under section 3 of the HRA, to allow such evidence to be adduced if its exclusion would result in an unfair trial for the accused. Lord Steyn asserted that “on ordinary methods of interpretation” section 41 did stop the trial judge from allowing the accused to use past evidence in the rape trial32. However, Lord Steyn went on to add that section 3 of the 1998 Act “applies even if there is no ambiguity in the language in the sense of being capable of two different meanings”33. The HOL further asserted that the court had a duty to interpret section 41 in a way, which protects the accused human rights. This further strengthens the importance of section 3 of the HRA and reinforces its powerfulness in interpreting legislation. Similarly in the case of Ghaidan v Mandoza34 the House of Lords held that it was possible to set for the long established habitable meaning of the Act to make it compatible with Convention rights. However, despite the unwillingness of the domestic courts to do so there are clearly cases that point towards an impossibility to interpret legislation compatibility with Convention rights35. This does not, however give courts in the UK power to strike down the Act or set it aside, thereby preserving the doctrine of Parliamentary supremacy in theory. When a higher court such as the House of Lords, Privy Council or Court of Appeal is satisfied that a provision is incompatible with the European Convention on Human Rights, it may under section 4(1) of the HRA grant a declaration of incompatibility to that effect. Although this declaration may trigger the taking of remedial action, it will not impact the validity or continuing enforcement of such a provision and it is not even “binding on the parties to the proceedings to which it is made”36. To date, the courts have exercised the power of incompatibility sparingly37. A prime example is the case of Alconbury Developments Limited and others v Secretary of State for the Environment, Transport and Regions38. In this case, a declaration of incompatibility was granted in respect of the primary planning legislation that allowed a minister to determine the outcome of planning appeals in which he had a policy interest, but this was set aside on appeal to the House of Lords under the HRA. Another case is Bellinger v Bellinger39 where a declaration of incompatibility was declared by denying transsexuals rights to marry. Furthermore, section 2 of the HRA implements an obligation for the British courts to take into account the case law of the ECHR, which has impacted the separation of powers doctrine as the judiciary is permitted to apply the principle of proportionality and the protection of human rights as protected by the Convention40. However, Lord Steyn warned that, proportionality allowed the courts to review such Acts that are incompatible with fundamental rights and was only permitted where there is strong evidence of irrationality41. Indeed, in the case of A v Home Secretary42, it was held that detention powers under the Anti Terrorism, Crime and Security Act 2001 were incompatible with the right to individual liberties under the ECHR. The obligation to take EC court decisions into account under section 2 of the Act also impacts traditional principles of judicial precedence, which effectively means that after the HRA came into force, the decisions of the ECHR will need to be taken into account43. Moreover, section 3 enables domestic courts to depart from the traditional method of interpretation of legislation. Whilst some may argue that this encroaches upon the Executive and is unconstitutional in undermining the separation of powers; it arguably expands the independence of the judiciary in reaching their decision. Simultaneously, the judiciary’s wider role further refers to the direct intention of Parliament that all legislation be compatible with the Convention rights, thereby preserving Parliamentary sovereignty. Moreover, the HRA clearly redefines the general legislative process of the sovereign Parliament44. Under section 19 of the HRA a minister in charge of a bill would be required to make a statement of compatibility prior to the Bill’s second reading. This statement should indicate whether or not the proposing Bill complies with protected Convention rights. In this manner, section 19 would appear to be anti-democratic and unconstitutional by impinging on sovereignty of Parliament in order to comply with Convention rights. Section 10 further provides a fast track procedure for the alteration of incompatible legislation upon a declaration of incompatibility. However, there are clearly limitations and the practical reluctance of national courts to make declarations of incompatibility has led to artificial interpretations of legislation to preserve the appearance of compliance with Convention rights. This is further limited by the fact that only higher courts have power to declare incompatibility under Section 4. Alternatively, the HRA is viewed as encroaching safeguards for individuals in restricting Parliamentary law making powers, as evidenced by the Anti-Terror law moves and there is clearly need to strike a balance. From this perspective, the HRA would clearly appear to remain “constitutional” as Parliament can still change the HRA or enact new legislation to overrule it45. Indeed Lord Steyn declared that, “it is crystal clear that the carefully and subtly drafted HRA preserves the principle or parliamentary sovereignty”46. The above analysis demonstrates that whilst the theoretical implications of the HRA as the most important piece of legislation in the UK cannot be underestimated, uncertainty still remains as to the extent of the EC law as a fetter on Parliamentary sovereignty. Moreover, the fact that the judiciary can merely determine whether rights have been breached arguably undermines the importance of the HRA as constitutional revolution for individual rights. Ultimately, it is far too dogmatic an assertion to brandish the HRA as an unconstitutional and anti-democratic Act. It would clearly create a legal paradox for the HRA to undermine the very purpose for which it was implemented, which is in fact to preserve essential civil liberties as a the cornerstone of any liberal democracy. Moreover, the very nature of an unwritten constitution and a true sense of democracy arguably require constant development and improvement, of which the HRA is an important part. In any event, the HRA clearly heralds a constitutional change in relation to citizen awareness about civil liberties and the domestic court protection enables Convention rights to even take precedence over domestic law in theory. Whilst the UK courts are likely to take a position “somewhere in between,” in order to preserve Parliamentary intention, the current position clearly highlights the fundamental role of the HRA in the evolution of national law towards EC supremacy, which has now become a reality as opposed to mere rhetoric. BIBLIOGRAPHY H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Lord Falconer LC., 657 HL Debs, col. 13 (26 January 2004). A King., (2001) Does the United Kingdom still have a constitution? Sweet & Maxwell. Loveland., (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Franz C. Mayer (2006). Supremacy –Lost WHI Paper 2/06 German Law Journal Vol 6 No 11 pp1497-1507. Franz C Mayer (2005) Competences- Reloaded? The vertical division of Powers in the EU after the New European Constitution, 3 the Journal of International Constitutional Law 493. H W R Wade & Forsyth (2004). Administrative law. 9th edition Cambridge University Press. www.opsil.gov.uk Read More