THE HUMAN RIGHTS ACT AND PARLIAMENT
The primacy of parliamentary sovereignty
A key but neglected fact about the Human Rights Act (HRA) 1998 is that it supports rather than undermines parliamentary sovereignty, and does so explicitly. True there is an interpretive capacity handed to the courts to strain language if possible to bring statutory provisions into line with human rights (section 3(1)) and all public authorities are also compelled to act consistently with the rights set out in the Act (section 6(1)). (Human rights in the HRA are defined by reference to the rights set out in the European Convention on Human Rights, a regional rights instrument overseen by the European Court of Human Rights in Strasbourg.) But that is a power that takes second place to parliamentary sovereignty in two ways, one explicit and one the result of judicial interpretation.
First the explicit qualification. Section 3(2) ensures that the interpretive power cannot be allowed to ‘affect the validity, continuing operation or enforcement of any incompatible primary legislation’ (section 3(1)(b)). It is also clear that subordinate legislation – made under the authority of an Act of Parliament – is safe if ‘primary legislation prevents removal of the incompatibility’ (section 3(2)(c)). Just to make things doubly sure, section 6(2) allows public authorities to act in denial of human rights if an Act of Parliament leaves them no option but to act in this way (section 6(2)(a)) or if all it is doing is giving effect to an Act’s human-rights-infringing provisions (section 6(2)(b)).
Second the implicit constraint. The assessment of what is ‘possible’ has been subjugated to parliamentary purpose as a matter of judicial interpretation. In the leading case of Ghadain v Godin-Mendoza [2004] UKHL 30 the majority of their lordships were clear that only a reading of the provision under scrutiny that ran with the grain of that statute’s underlying purpose could be warranted under section 3(1). Anything else would be, to quote Lord Bingham in an earlier case,‘judicial vandalism’: R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 at para 30. These dicta are well-known and routinely applied in the voluminous case-law on section 3 that has been generated since the 1998 Act came into force. It would be possible to amend the section to make the current judicial guidance more explicit, but it is not necessary: the section is well understood as it is.
These sections and subsections of the HRA are fundamental to the architecture of the Act. The new Labour government that secured the Bill’s enactment was aware of the deep mistrust of the judicial branch that was shared right across its benches, its wider membership and its trade union supporters. There were good historical reasons for such suspicion, and these were not allayed by a few years of judicial liberalism. The politicisation of the US federal judiciary was an increasingly noisy warning about what could go wrong with judicial power. Parliament would have had no majority in 1998 for a human rights measure going further than the HRA, in the direction – American-style – of entrenching judicial oversight of legislation. This remains the case today.
The common law (judge-made law standing outside the legislative system and rooted in court rulings going back centuries) does not contain the same respect for parliament’s sovereignty, albeit the courts have recognised its supremacy for centuries. What the courts respect at common law today they do not necessarily or inevitably respect tomorrow: Jackson v Attorney General [2005] UKHL 56. But what they cannot do, as long as sections 3 and 6 are in place, is refuse to recognise the legality of Acts of Parliament solely because of their infringement of Convention rights. So the HRA bolsters parliamentary sovereignty more than the contingent subservience that is offered by the common law. Repeal of sections 3 and 6 might unlock common law constitutionalism in a way that would be seen as more controversial in democratic terms than the HRA has ever been.
Accountability under the Human Rights Act
Part of the balanced deal between human rights and parliamentary sovereignty involved heightened accountability for compliance with human rights law as compared with the pre-HRA legal regime. In those days the victim of an alleged abuse of rights needed to take their case to Strasbourg, and a mild international law duty to implement the ruling was all that victory could produce. This system of judicial oversight remains and will no doubt return to prominence if the HRA were to be repealed or amended in substantial ways that denied access to the courts for alleged Convention breaches (and as long, of course, as the UK remained committed to the European Convention on Human Rights). The HRA adds new layers of accountability to this skeletal framework, in three ways in particular.
First, section 19 insists that the government reveal its hand so far as all its new legislation is concerned, saying whether or not it is in its view compatible with the rights set out in the HRA. No reasons need to be given but even as it stands the clause drives rights-analysis earlier into the drafting process than ever before. Such statements are however, and rightly, not determinative of any legal issue related to the relevant measure that might later emerge in court. A possible addition to the HRA which would assist accountability would be to require brief reasons to accompany the section 19 statement.
Second, the combination of the way the HRA is structured with the way that the Convention rights are interpreted, both in Strasbourg and in the UK, means that in practice the Government (or any public authority) will find itself frequently forced to defend itself in court by means of explaining why this or that of its actions are in fact consistent with human rights as understood in the HRA. This is because those rights are generally not absolute, but are permitted to be departed from in many ways, so long as such deviations are proportionate to their goal so far as the damage done to human rights is concerned. The great majority of cases under the HRA involve this sort of explanatory exercise from the authorities, one that was much less intrusive in the pre-HRA legal system than it is now.
Third, where a declaration of incompatibility is made under section 4, the government needs to consider whether or not to bring the impugned law into line with the right or rights which it has now been found to have violated. It does not have to do anything but at very least it needs to explain itself. On the whole successive governments have acted to bring the law into line with such declarations, so much so that there is a slight sense that their quiescence here was not quite what the drafters of the HRA had in mind. These provisions could be reworked to highlight the discretionary nature of the decision on whether or not to comply with declarations of incompatibility, but the wording is already arguably clear.
Accountability could be further improved by giving statutory recognition in the HRA to the role of the Joint Committee on Human Rights – an important parliamentary forum for human rights that is however (as is the case generally with such committees) outside the framework of statute law (including the HRA).
The subsidiary role of the European Court of Human Rights
Section 2 of the HRA sets out the circumstances in which decisions of the Strasbourg court are to be taken into account in the UK courts.
The section might be thought unduly complicated and if there were the desire it could perhaps be simplified so as to eliminate from its remit the range of materials that are required to be taken into account that are presently set out at section 2(1) (b) – (d). The courts can be relied on to take these materials into account when relevant without being required to do so, and their presence in the section arguably detracts from understanding its primary effect and purpose: to ensure that decisions of the Strasbourg court are part of decision-making under the HRA but that they do not drive the outcomes of individual cases. (See In re Finucane [2019] UKSC 7 at para 29 – 31, 141 – 142 for a recent decision taking account of the Committee of Minsters report in a Strasbourg case.)
It was arguably the case that in its first decade the section was interpreted in a way that was overly deferential to the Strasbourg court: R (Ullah) v Special Adjudicator [2004] UKHL 26. But since the important, early decision of the then newly formed Supreme Court in R v Horncastle [2009] UKSC 14, this has been no longer the case. The original intention of section 2, to stimulate a dialogue between the Strasbourg and the senior courts in the UK, has been achieved. No change is required.
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