Human Rights Act (HRA)

"In form, the Human Rights Act (HRA) is compatible with parliamentary sovereignty. In practice, it will reduce such sovereignty to almost nothing. " Discuss. Parliamentary sovereignty is one of the pillars of the UK's unwritten constitution. It is often elucidated by reference to the orthodox Diceyan view which provides that Parliament is the supreme legislative authority in English law. In opposition, other forms of Parliamentary sovereignty have been posited, such as the "common law approach" and "pluralist approach" (Armstrong, 2003).

But by far, the most sustained attack on Dicey's views has come with the argument that a Parliament may limit its successors as to "manner and form" (Sir Ivor Jennings, 1959). Despite criticism from Sir Ivor Jennings, among others, Dicey and his analysis of this fundamental constitutional rule have retained a notable influence in public law. Thus, it seems appropriate that his interpretation is applied when examining the effects of the Human Rights Act on Parliamentary sovereignty.

Dicey's (1961) legal theory may be distinguished as two halves – the positive limb articulates that "Parliament has the right to make or unmake any law whatever"; while the negative limb asseverates 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" (p. 3). In essence this legal doctrine may be encapsulated in four statements: Parliament may pass legislation concerning anything; it may neither bind its successors nor be bound by its predecessors; and only Parliament can change or reverse an Act of Parliament.

Wade (1955) furthered this by stating that the only limit to Parliament's legal power is that it cannot detract from its own continuing sovereignty. The idea of Parliamentary supremacy is deemed to have undergone erosion from several directions, of which incorporation of the European Convention of Human Rights (ECHR) into UK domestic law is one. As a matter of international law the UK has been bound by the ECHR's terms since the 1960s (Tomkins, 2003).

But until 2000, when the HRA 1998 came into force, the ECHR's terms could only be enforced in respect of the United Kingdom by the European Court of Human Rights (ECtHR) in Strasbourg, and not by any UK domestic court. The potentially complex task of settling on a set of fundamental rights to be protected was circumvented by using most of the rights contained in those parts of the ECHR which the UK had ratified or was about to ratify (the 'Convention rights'), although some people hope that a wider range of rights will be included later (Feldman, 1999).

The HRA plays a similar role in respect of the ECHR to that played by the European Communities Act 1972 in respect of the European Community. But the similitude ends there because the terms of the domestic incorporation of the ECHR are notably different from those contained in the ECA (Tomkins, 2003). The doctrine of Parliamentary sovereignty presented a hurdle during attempts to increase the level of formal protection of human rights in constitutional law (Bradley, 2004).

Given the UK's unyielding loyalty to Parliamentary sovereignty, the drafters of the HRA were posed with the task of balancing the incorporation of Convention rights into domestic law, and protecting Parliament's legislative supremacy. The HRA has been viewed as successful in achieving the proposed balance because it neither entrenches Convention rights nor grants political freedom to Parliament to compromise them by later statutory amendment.

Lord Irvine (2003) asserted that Parliament has two principal interests in the HRA – to maintain Parliamentary sovereignty by defending its right to legislate, and to defend its legislation. Regarding the extent of incorporation, there is no question of the Convention rights in themselves "becoming part of our substantive domestic law" (HL Deb, 1997); rather, certain defined provisions of the Convention enjoy a defined legal status. The HRA does not incorporate the ECHR into domestic law in the way that the ECA 1972 incorporates the EC Treaty.

Instead, what it does is give effect to certain provisions of the Convention and some of its protocols by providing that Convention rights are to have a defined legal status (Ewing, 2004). As with many Bills, the drafting of the HRA elicited much debate over its effect on Parliamentary sovereignty. There was overwhelming emphasis during Parliamentary proceedings that the Act is designed to be compatible with, if not to strengthen, Parliamentary sovereignty, while also giving effective protection to Convention rights (Rights Brought Home: The Human Rights Bill, 1997).

"It is clear", said Lord Steyn in R v DPP, ex parte Kebilene [2002] 2 AC 326, 367, "that the carefully and subtly drafted Human Rights Act preserves the principle of Parliamentary sovereignty". Jack Straw, at the Bill's second reading in the Commons, propounded that "what the HRA makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act that it has passed, but which is incompatible with the Convention in the eyes of a British court, it is that Act which will remain in force" (House of Commons Debate, 1998).

Lord Woolf (2002) recognised that the HRA was criticised due to the suggestion that it interferes with the sovereignty of Parliament. But he commended the skilful way in which it has been crafted, for "it provides very substantial protection for human rights without undermining those fundamental constitutional principles". However, Bradley (2004) argued that the Act has "enabled there to be judicial review of legislation in all but name" by providing courts with a dual function to apply the rule of interpretation and, failing that, to make a declaration of incompatibility.

Kingland (2000) was concerned that under the Act, UK judges aren't affected by the jurisprudence of the ECtHR, but rather they need only have regard to it. He suggested that it might have been better if the government had simply produced a domestic Bill of Rights. Lord Irvine (1999) held that, because the HRA takes an interpretative approach to fundamental rights, it is compatible with Parliamentary sovereignty. But Campbell (2001) disagreed, arguing that despite its complex balancing act, the HRA exudes it severely diminishes the effect authority of elected representatives.

He saw the interpretation requirement of courts as having the capacity to bring about full incorporation of the ECHR to the point where courts are in practice able to overturn legislation that they deem to be in violation of their reading of the ECHR. The Act has been applauded as a much overdue constitutional innovation (Greer, 1999) but its impact falls short of triggering a constitutional revolution in the sense of placing judicially enforceable 'higher law' constraints on Parliament's legislative power (Loveland, 2003).

The statement in discussion expresses that in practice the effect of the HRA has been to erode Parliamentary sovereignty to almost nothing; but the reality is more nebulous. Section 3(1) places an express statutory duty on courts to strive to interpret and give effect to legislation in a way which is compatible with Convention rights (as defined in section 1(1)), "so far as it is possible to do so" (Wadham & Mountfield, 1999).

In order to minimise the tension between protecting fundamental rights and the maintenance of Parliament's legislative sovereignty, subsections (b) and (c) accord no power to strike down or disapply legislation which is found to be incompatible with Convention rights (Feldman, 1999). The constitutional significance of section 3 depends in large part on the meaning which courts attach to the idea of "possible".