Protection of Convention rights

The genius of Sections 3 and 4 of the Human Rights Act 1998, is that they preserve the principle of Parliamentary Sovereignty while at the same time giving adequate judicial authority for the effective protection of Convention rights. ' Discuss. For years, our unwritten constitution has been based on the idea of parliamentary sovereignty. This doctrine, most famously written on by Dicey quite simply states that acts of parliament are the highest form of law in the country and there are no rights which parliament cannot give or take away (except to extend its own life).

Thus, citizens had no fundamental rights which could not be taken away by parliament as this would undermine the doctrine of parliamentary sovereignty. Despite the UK ratifying the European Convention on Human Rights (ECHR) in 1951 and accepting the right of individuals to petition to the European Court of Human Rights (ECtHR) in 1966, it was only with the coming into force of the Human Rights Act 1998 in 2000 that domestic courts could give some sort of aid in regards to infringements of these rights owing to strong interpretive powers.

Here, we will specifically look at sections 3 and 4 and gauge whether they give adequate judicial authority for the effective protection of Convention rights. Section 3 of the Human Rights Act 1998 requires that "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights1". There are 2 key points here. Firstly, the usage of the word must is a clear instruction to the judiciary that they have to use it.

Secondly, the fact that it states 'so far as possible' puts clear limits on this interpretive duty in the sense that if an act cannot possibly be construed in a manner compliant with the HRA, courts are not to 'twist the act' to read into in a compliant manner. These principles have been solidified by case law2. In Re S (Care Order: Implementation of Care plan) [2002] 2 AC 291, Lord Nicholls says that section 3 is "a powerful tool whose use is obligatory" and clarifies that it is only interpretive and that courts must be mindful of its limits when using it.

In R. (Anderson) v. Secretary of State for the Home Department [2003] 1 AC 837 Lord Bingham is perhaps more explicit and says that the powers only allow for interpretation of the judiciary in line with parliament's objectives rather than "judicial vandalism. " This in turns leads on to section 4. Under section 4, "If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility3. " Of course here, there is no obligation to make such a declaration.

From the wordings of these sections, it becomes immediately apparent how parliamentary sovereignty is preserved. Though section 3 gives judges stronger interpretive powers than before, they are still merely interpretive. Also, section 4 clearly states that a declaration of incompatibility "does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given4". The next question is whether it gives adequate judicial authority for the effective protection of convention rights.

To establish this, it is necessary to consider section 3 and 4 together but also section 10 as this forms an important part of the protection given by section 4. If a declaration of incompatibility is made under section 4, it triggers section 1o. This allows for a minister to introduce a remedial order (this is also referred to as the 'fast-track' procedure) to amend the offending provision which has been declared to be incompatible, so as to make it compatible. There are many cases which indicate that these sections provide adequate protection.

In Anderson, section 3 was used to allow a prisoner the right to have his tariff set by an independent body, namely the judiciary. This is a clear and straightforward example of judicial authority providing effective protection of convention rights using section 3 of the HRA. In Regina v A (No 2) [2002] 1 AC 45 the House of Lords held that in rape cases, cross-examination of victims with regards to prior sexual history was both allowed and admissible in the interest of the right to a free trial under Article 6 of the ECHR.

This case is a clear example of courts interpreting existing law with regards to convention rights and allowing convention rights to prevail. In this case, the court also indicated that they were prepared to read down the legislation to achieve compatibility and only if this was not possible, then a declaration would be issued. Ghaidan v Godin-Mendoza [2004] UKHL 30 concerns the Rent Act 1977. In the case of the death of a partner of either a heterosexual marriage or of a situation where a heterosexual couple where cohabitating despite not being married, the Act allowed the tenancy to pass to the surviving partner.

Here, House of Lords held that the Act was in infringing both articles 8 and 14 of the ECHR in discriminating between heterosexual and homosexual couples and thus under the section 3 obligation, read into the Act to allow for homosexual couples. This case goes further in showing the effectiveness of section 3 in protecting convention rights as it could not possibly have been the original intention of parliament to allow for homosexual couples as homosexuality was an offence at the time the legislation was initially passed.

While based on these few cases, it may seem like sections 3 and 4 of the HRA 1998 provide adequate protection of Convention rights, it is easy to bring criticisms against it. The most obvious point is that even if legislation is interpreted to allow human rights to prevail, parliament if it so wished could merely reinstate the offending provision in words which were more explicit and left no leeway for judicial interpretation. Doing so however would presumably lead the courts to issue a declaration of incompatibility if the legislation was challenged.

While such a declaration has no immediate effect, it allows for action under section 10. If no such action is taken, victims could apply to Strasbourg. Should the ECtHR find in favour of the defendant, it is likely that the UK government would feel pressured to amend the legislation. Thus, it is a combination of political pressure, European pressure and the practical benefit of savings both in terms of cost and reputation that help to overcome this obvious criticism.

Nonetheless, there are cases were adequate remedies have not been provided for. For instance, in R (on the application of Sylviane Pierrette Morris) v Westminster City Council & First Secretary of State [2005] EWCA Civ 1184 and R (Gabaj) v First Secretary of State (decided March 2006; unreported), declarations of incompatibility were issued with regards to section 185(4) of the Housing Act 1996 as it infringed Art 14 of the ECHR. To this date, the Act has not been remedied. A proposed amendment is making its way through parliament.

However, it is noted in the thirty-first report of the Joint Committee on Human Rights (JCHR) that though the proposed provisions rectifies the exact part of the Act courts found incompatible with convention rights, they felt that the proposed provisions taken together with article 8 still seemed incompatible with article 14. Further, it is worth noting that in the case Burden v UK6, the ECtHR noted that in their mind a declaration of incompatibility could not be considered an effective remedy for the purpose of Article 13 of the ECHR as it is still entirely up to the government to decide whether to change the law in anyway.

This was discussed in the abovementioned report of the JCHR. They also noted however that the ECtHR said that they did not rule out the possibility that if there was an established tradition of ministers effectively remedying legislation under s10 of the HRA at some future date, the declaration of incompatibility may be considered an effective remedy. The report however noted that certain recommendations were made to parliament but they were content with the current procedure and took heart from the indication that it may be considered an effective remedy in the future.

This encapsulates the desire of parliament to maintain parliamentary sovereignty with regards to human rights. In conclusion, it is clear that sections 3 and 4 of the Human Rights Act 1998 do preserve parliamentary sovereignty in name. However, judges have interpreted legislation creatively under this section sometimes even contrary to the intention of parliament at the time of legislation. They have also issued declarations of incompatibility that have caused changes in legislation. To this extent, these sections do allow for reasonably effective protection of human rights.

There are however instances of the protection afforded by these sections failing and ultimately, they do not allow for complete protection. It is likely that any further changes might undermine parliamentary sovereignty which would probably be unthinkable at hits time.

Sources 1. Oliver and Jowell, The Changing Constitution (2007), New York, Oxford University Press 2. Fenwick and Phillipson, Text, cases & materials on public law & human rights (2003), London, Cavendish Publishing Limited http://www.justice.gov.uk