The Impact of the Human Rights Act 1998 - Essay Example

1 WITH REFERENCE TO RECENT CASE LAW, DISCUSS THE IMPACT OF THE HUMAN RIGHTS ACT 1998 ON THE DOCTRINE OF PARLIAMENTARY SUPREMACY The United Kingdom’s constitution is unique because unlike many world constitutions wherein state order is based on a written definitive set of documents established at some particular points in history, UK do not have such codified, written set of documents called the UK constitution. Instead, it is a hodgepodge of statutes, case laws, miscellaneous rules all of which are in written form1. Treaties like the European Communities Act 1972, that had been incorporated into domestic law and termed as constitutional statutes are also part of the UK Constitution2 so are unwritten parliamentary constitutional conventions and royal prerogatives. The UK Constitution is rightly deemed an unconventional, uncodified constitution that is a pragmatic product of experience and experiment. Central to the UK Constitution is the doctrine of parliamentary supremacy which endows the UK Parliament an overweening supremacy above all other governmental institutions including the executive and the judiciary. As defined by Albert Dicey, it is a doctrine wherein the Parliament has “the right to make or unmake any law whatever and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”3 Parliament is not bound by its predecessor. In other words, it confers upon the Parliament the title “Supreme Lawmaker” by which the notion of judicial review does not apply. Thus, no court is allowed to question the validity of an Act of Parliament. Moreover, the 2 Parliament’s legislative competence is rendered unlimited and by ordinary Act of Parliament it is empowered to alter any aspect of the existing Constitution. This doctrine had been questioned but was upheld in the Madzimbamuto case with finality, holding that if Parliament chose to enact a law that is improper or immoral, “the court will not hold the Act of Parliament invalid”.4 This doctrine had also been lambasted by such judges as Lord Chief Justice Woolf on the ground that it causes the British courts to become a weakened judiciary, stripped of the power of judicial review and the power to interpret civil rights implications while the Parliament is free to enact any legislation that it desires.5 It is a reality though, that the doctrine of parliamentary supremacy was threatened and suffered an erosion when UK decided to become a member of the European Union in 1972 and had to accede to European laws and the principle of the supremacy of European union law. The case Costa v ENEL was like a Sword of Damocles hanging on the doctrine of parliamentary supremacy as it held that “laws of member states that conflict with EU laws must be disapplied by member states courts” and that “Community law would prevail over both subsequent and previous domestic law”6. Cases like Pickstone v Freemans7 and Litster8 forced the House of Lords to adopt an interpretation that would avoid a conflict between domestic law and the EC law9. The case Macarthy’s v Smith emphasised that “it is our bounden duty to give priority to Community law”10 while the Factortame case stressed that it is the duty of the national court “to 3 give effect to it (Community law) in all circumstances.11 Because the EC laws give overweening importance to human rights, UK was compelled to enact the Human Rights Act 1998. Prior to the Human Rights Act 1998, which Act of Parliament received Royal Assent on 9 November 1998 and which took effect on 2 October 2000, the legislative competence of the UK Parliament was virtually unlimited. With the Human Rights Act, this competence is threatened as UK has to give way to the supremacy of EU law. As founding member of the Council of Europe, UK must respect and conform to the laws and regulations of EU and must adhere to the ruling of Costa v ENEL which proclaims that EU law must prevail over domestic laws. The Parliament is discouraged to enact a legislation that is glaringly incompatible with EU laws and had to abolish its death penalty laws on certain military offences and is prohibited from resurrecting the death penalty laws on heinous acts and treason. Section 6(1) of the HRA effectively binds the Parliament as it rules that “it is unlawful for a public authority to act in such a way as to contravene Convention rights” and when we say Convention rights we refer to the rights held sacrosanct by the European Convention on Human Rights i.e. all those fundamental rights and freedoms that had been adopted and incorporated by HRA. These are articles 2-12, 14, 16-18, 1st protocol articles 1-3 and 6th protocol articles 1-2 of the ECHR. Although “public authority” excludes in its ambit the Parliament and any of its members yet it is forced to create a Joint Select Committee on Human Rights which is tasked with the obligation to scrutinise government measures for their compatibility with Convention rights as well as to establish government action whenever a measure is declared by the court as incompatible to the latter and when the ECHR finds that the UK has violated the Convention.12 If there is such 4 incompatibility or inconsistency, HRA adjures the courts to make a declaration of incompatibility (Section 4, HRA) and for the first time, higher courts are given a powerful voice to formally declare that the Parliament has acted improperly as a matter of law. Thus, the Parliament is under pressure by the courts, the EU and its European member-states and UK public opinion to comply with its human rights obligations under the Convention. HRA may not override an Act of Parliament and it may be repealed or amended by another Act, still such pressure amounts to curtailment of the doctrine of parliamentary supremacy. This pressure is evident in Bellinger v Bellinger where the court’s declaration of incompatibility forced Parliament to enact the Gender Recognition Act 2004.13 It should be noticed that the court’s declaration of incompatibility carries no grant of legal remedy to the breach. Yet, it must be observed that in each and every case where the court makes such a declaration, the “government has introduced and Parliament has enacted or approved amending legislation to address the incompatibility” and thus, proving the political impact of such declaration of incompatibility.14 One such amended legislation is the Prevention of Terrorism Act 2005 which is an offshoot of the court’s declaration of incompatibility in the A & Ors v Secretary case.15 Others are the Criminal Justice and Police Bill 2002-3 and the Enterprise Bill 2002.16 Section 19A has to some extent chipped the invincibility of the doctrine of parliamentary supremacy because it has pressured Ministers to introduce a proposed Bill as one which is compatible or incompatible with HRA which subject of compatibility is then opened for argumentation, scrutiny and debate prior to its enactment. The human rights activists in the Parliament are given their day to shoot down legislations contrary to the spirit of the 5 Convention.17 In reality, the court’s declaration of incompatibility has no legal effect on an enacted Bill but it triggers a power contained in Section 10 of HRA which empowers a Minister of the Crown by order “to make such amendments to the legislation as he considers necessary to remove the incompatibility (Sec. 10(2) HRA). “This provision therefore allows ministers to use delegated legislation to revoke provisions contained in primary legislation”18 and in effect, weakens the doctrine of parliamentary supremacy. In conclusion, under HRA Parliament is still allowed to enact any law, however unconscionable and unjust so that the principle of parliamentary supremacy be preserved (Sec. 3(b)(c)). But in preserving this principle, HRA has made an effective inroad vis-à-vis the principle because it has built a public awareness of human rights, with the courts serving as human rights’ guardian and protector, and such has permeated to all aspects of decision-making. In this new legal order that is the HRA, parliamentary sovereignty has indeed been reasserted, but “the substance of legislative power which the doctrine implies has been subjected to an important measure of judicial control”19 resulting to the doctrine being castrated. It will only take a matter of time when this doctrine will be smashed into smithereens when the projected Supreme Court of UK and the UK Bill of Rights be entrenched, both of which will provide an even greater and unhampered protection of human rights. As of today, the HRA cannot provide any constitutional guarantee of human rights. It however, tries its best to give precedence to Convention rights to the extent that it is consistent with continuing sovereignty of Parliament. REFERENCES Dicey, Albert. Introduction to the Study of the Law of the Constitution, Adamant Media Corporation, 2005. Feldman, David. The Impact of the Human Rights Act 1998 on English Public Law, BIICL,2005 Fenwick, Helen & Gavin Phillipson. Constitutional and Administrative Law, Routledge, 2003. Harrison, Kevin & Tony Boyd. The Changing Constitution, Edinburgh University Press,2006 Jowell, Jeffrey & Dawn Oliver. The Changing Constitution, Oxford University Press, 2007 Phillipson, Gavin. Text, Cases and Materials on Public Law and Human Rights, Routledge Cavendish, 2003. Turpin, Colin & Adam Tomkins. British Government and the Constitution: Text and Materials, Cambridge University Press, 2007 CASES BIBLIOGRAPHY A & Ors v Secretary of State for the Home Department (2004) EWCA Civ. 1123 Bellinger v Bellinger (2003) 2AC 467 Costa v ENEL (1964) ECR 585 Litster v Forth Dry Dock & Engineering Co. Ltd. (1989) 1 All ER 1194 Macarthy’s v Smith (1981) 3 All ER 325 Madzimbamuto v Lardner-Burke (1969) 1 AC 645 Pickstone v Freemans (1988) 3 WLR 265 Secretary of State for Transport ex p Factortame (1990) ECR-1-2433 Thoburn v Sunderland City Council, (2002) 4 All ER 156 Read More