The United Kingdom was one of the initial signatories to the European Convention on Human Rights in 1950, which was established in post-war Europe as a means of enforcing essential human rights. 1It was a direct result of the movement for cooperation in Western Europe, which in 1949 created the Council of Europe. 2 By 1966, the United Kingdom had recognized the power of the European Court of Human Right to hear complaints of United Kingdom Citizens and the authority of the European Court on Human Right to adjudicate in such matters.
The Convention declares certain human rights, which are or should be protected by the state and also provides judicial procedures by which the alleged infringement of these rights may be examined at an international level. 3 The Convention could not have a direct effect in British courts because it was not incorporated into domestic law. The effect of which meant that individuals had to pursue their rights, which the state had endorsed in an external forum rather than through their own forum.
4 However by 1998, these conventions were incorporated into domestic court and took effect from 2000. 5 The Convention guarantees the following rights and freedoms: right to life (Article 2); freedom from torture and inhumane or degrading treatment or punishment (Article 3); (Article 5); right to a fair and public trial within a reasonable time (Article 6); among many others.
The Act incorporates into our domestic law the rights and liberties enshrined in the European Convention of Human Rights (ECHR), by giving it a further effect. The government's portrayal of the Acts as "bringing human rights home" or "the domestication of human rights" seeks to suggest that the Act will achieve a delicate balance between formal acknowledgement of fundamental freedoms and the sovereignty of the United Kingdom Parliament.
6 The effect of this incorporation is felt in three ways, First the interpretation of primary and secondary legislation to be compatible with Convention right, Secondly, by the creation of a new cause of action in section 6 to 8, and thirdly, providing new mechanism by which pressure is placed on Government and Parliament to bring existing and future legislation into line with the Convention.
7 The HRA has been recognized as the first major step towards a British Bill of Rights and has been accorded an important element in the constitutional re-settlement of the different nations and regions of the United Kingdom, and the recognition of the people of the United Kingdom as citizens endowed with human rights. 8 It creates a direct link between the Convention rights and the laws of the UK enabling the courts to give a direct effect to Convention Rights.
The Act reconciles formal adherence to the doctrine of Parliamentary sovereignty with the need to enable the courts to provide effective legal remedies for breaches of Convention Rights. 9 Although the HRA comes as close as empowering the courts to disapply a legislation that is inconsistent with the Convention Rights, it respects the British tradition of Parliamentary democracy and does not empower the judiciary to strike down an Act and to this extent it gives a weaker power to the Convention rights to that which it accords the Community law under section 2 of the European Community Acts 1972.
In the Act is a strong interpretive clause under which all courts will be required to 'read and give effect' to primary legislation in a way which is compatible with Convention rights 'so far as it is possible to do so' (Section 3(1)). By using the term 'possible' rather than 'reasonable' or 'reasonably possible' in Section 3, the Act has imposed an obligation on the courts to adopt a strained construction, which is consistent with Convention rights in preference to an inconsistent construction, which more closely reflects the wording of the statute in question or the intention of Parliament.
As the White Paper makes clear, the obligation in Section 3… goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the Convention rights unless the legislation itself is so clearly incompatible with the Convention that it is impossible to do so. '10 Has the HRA 1998 changed the traditional understanding of Parliamentary Sovereignty?
The sovereignty of the Parliament has not changed with the introduction of the Act. This is usually viewed by understudying the relationship that exists between the legislature and the court which has been so dynamic and capable of changing in response to needs. Prior to the HRA 1998, the British legal order was one of Parliamentary supremacy tempered by the courts evolving rules of interpretation that aided, to a degree, the protection of some basic freedoms. 11 The Parliament occupies a central place in the legal system.
There were no legal limits on the authority of the Parliament as they have the power to make constitutional changes by ordinary process of legislation. According to Dicey, " The principle of Parliamentary sovereignty means that the Parliament has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognized by the law as having a right to override or set aside the legislation of the Parliament.
"12 This ensures that the courts will obey any new Act of Parliament as seen when faced with two conflicting Acts of parliament of the same statute, the court applies the later act as no sovereign Parliament is bound by its predecessors. By the Doctrine of implied repeal, the later Act repeals the earlier Act to the extent that the later Act is inconsistent with provisions in the earlier Act. 13 As long as United Kingdom remains a member of the European Union, the Parliamentary authority will be limited by the Community law and the Court must disapply United Kingdom legislation if it conflicts with Community law.
14 The Human Rights Act 1998 maintains legislative sovereignty as a matter of form, by empowering the upper courts to disapply an Act of the Parliament, which is incompatible with the Convention Right. The sovereignty of the Parliament has not been changed with the enactment of the Human Rights Acts 1998. This is achieved by not entrenching the Act against repeal. However it must be noted that the Parliament does not intend to legislate so as to put the United Kingdom in breach of its Human Right obligations.
Where the legislation is ambiguous or unclear, so that one interpretation of the words used would comply with the Act but another would not, the court should adopt the former, however, where the language is unclear, it had to be applied by the courts, regardless of a violation of the Act. 15 The Courts and Primary Legislation When faced with primary legislation provision, which is conflicting with a Convention right(s), the courts will have to interpret and apply several interlocking provisions of the HRA.
The government has reached the conclusion that courts should not have the power to set aside primary legislation, past or future, on the ground that it is incompatible with the Convention. The exclusion clause goes to show the importance, which the government attaches to Parliamentary supremacy. Parliamentary sovereignty prevails in that the primary legislation, which unequivocally offends against Convention rights, will live on, subject to remedial measure, and subordinate legislation too will survive if there is no room under the primary or enabling legislation to remove the offending parts.
16 The key feature of the HRA is notable in Section 3- a duty placed on the courts and tribunals to read and effect all legislation, 'whenever enacted', in a way which is compatible with Convention rights 'so far as it is possible to do so' Section 4- If such interpretation of primary legislation is not possible, a superior court may make a declaration that the legislation is incompatible with a Convention right, but this does not affect the validity of a legislation Section 6- It is unlawful for a public authority to act in a way which is incompatible with a Convention right, except where this is mandated by primary legislation
Section 7-9 – Legal proceedings in which persons may assert their Convention rights when claiming that a public authority has acted unlawfully in breach of s 6 Section 10- Power of Government to make a remedial order amending primary legislation (subject to Parliamentary Procedure) so as to remove an incompatibility which has been the subject of a declaration of incompatibility or and adverse decision at Strasbourg Section 19- Duty of Government minister to make statement of compatibility or (incompatibility) when introducing a new Bill in Parliament.
For the court to decide whether there is inconsistency between primary legislation and an individual's Convention rights, the court is required to (a) assess the effect of the UK legislation, (b) assess the effect of the Convention itself and (c) evaluate the UL legislation against those rights. 17 Lord Hobhouse further buttressed this in Wilson v First County Trust Ltd18 where he stated that in order to preserve the traditional supremacy of the Parliament in the constitution of the United Kingdom, legislation cannot be invalidated by the Act even if it is incompatible with the Convention.