This ‘What’s so weak about “Weak-Form review”? The case

This assignment is going tobase on key provisions of the Human Rights Act 1998 that may impact onparliamentary sovereignty, and present an argument either that Parliamentarysovereignty has been preserved in the UK or that Parliamentary sovereignty hasbeen undermined by Human Rights Act. Parliamentary sovereignty isa principle of the UK constitution. It makes Parliament the supreme legalauthority in the UK, which can create or end any law.

Generally, the courts canoverrule its legislation and no Parliament can pass laws that futureParliaments cannot change. The Human Rights Act 1998 isa UK law passed in 1998. It lets you defend your rights in the UK courts andcompels public organisations (including the Government, police and localcouncils) to treat everyone equally, with fairness, dignity and respect.

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It has been suggested thatthe HRA has given the judiciary much more power than it previously had. BothAdam Wagner and Aileen Kavanagh cover this in their articles. In ‘Judicial Interpretationor Judicial Vandalism? Section 3 of the Human Rights Act 1998’ by Adam Wagner,he covers the topic of the possibility of Section 3 changing legislationthrough the Courts.

He states that ‘the courts have been inconsistent in theirapproach to the interpretative obligation.’ However more often than not, thecourts have made is possible to change such legislations when the Human RightsAct has been breached. However in ‘What’s so weak about “Weak-Form review”? Thecase of the Human Rights Act 1998, Aileen Kavanagh covers more over how the HRAgives the UK a more ‘strong judicial review.’ Although the courts haveconsiderable power to protect rights in primary legislation by using the HRA,they still need to be mindful of the limitations on the judicial role.

The paradigm form ofprotection given to human rights involves not simply rendering unlawful conductfor example by an individual or public body, but at a constitutional level,making it impossible or even difficult for legislation to be enacted that isincompatible with such rights. Thus the difference between human rights andother legal rights is that regular rights can be modified or removed bylegislation. The HRA was a key element ofthe constitutional reform programme undertaken in the early years of Labouradministration that office in 1997. It was intended tto extend the protectionof human right in domestic law in two main respects.

The effect of the HRA is togive effect in the UK law to certain of the rights set out in the EuropeanConvention on Human Rights (ECHR). The ECHR is an international treaty – thatis an arrangement between states that is binding upon them as a matter ofinternational law. Unlike many international treaties the ECHR contains aninstitutional regime for the enforcement of the rights that it sets out.Article 19 of the ECHR states that – the European Court of Human Rights (ECtHR)has to ‘ensure the observance of the engagements undertaken by the states tothe convention’. Claims alleging that a state party has violated relevantrights can be brought before the Court by other state parties and byindividuals claiming to be victims of the alleged violation. If the Court findsthat there has been a violation, it has the power to ‘afford just satisfactionto the injured party’. All of the above statementswere true before the enactment of the HRA as they are now; the UK has thus beenbound by the ECHR as a matter of international law.

Ever since the UK optedinto the right of individual petition, individuals have been able to instituteproceedings against it in the ECtHR. However what they could not do, was toinvoke the ECtHR in domestic legal proceedings. This was one of the majorfactors that formed the impetus for enacting the HRA. The HRA empowers nationalcourts to protect the Convention rights. These are the rights set out inArticle 2-12 and 14 of the ECHR. It is apparent from reading these rights, theECHR is based on civil and political rights. It is thus that the HRA centrallyconcerned itself with matters such as physical liberty of the individual andfreedoms to live ones life without unwarranted interference in relation to suchmatters as expression, religion and protest. In this way, the Conventionfocuses on those rights that are likely to uphold the autonomy of theindividual, considerations of equality being secondary.

The HRA forms protectionover the Convention rights in numerous ways. Firstly is by making it moredifficult for the UK Parliament to enact legislation that is inconsistent withthose rights. Section 19 of the HRA stipulates that, before a bills secondreading, the Minister responsible for it must do one of two things: either hemust make a statement of compatibility, saying that he believes the Bill to becompatible with the Convention rights, or he must explain why he thinks theBill should be enacted even though he cannot undertake that it is compatiblewith the Convention rights.

This system is intended toensure that Parliament does not enact legislation that will beach theConvention rights: if a Minister finds himself unable to issue a statement ofcompatibility, this will draw Parliament’s attention to the possibility thatthe Bill may be incompatible with one or more of the Convention rights, andwill focus attention both inside and beyond Parliament – on whether there arecompelling reasons for enacting the legislation despite such putativeincompatibility.There is however, an obviousweakness in the system. For a variety of reasons including incompetence,genuine misjudgement and cynical political calculation, statements ofcompatibility may be issued in respect of Bills that later turn out to beincompatible may be issued in respect of Bills that later turn out to beincompatible with one or more of the Convention rights.

Section 6 of the HRAprovides that public authorities must act compatibly with the Conventionrights, unless primary legislation requires them to act incompatibly. Thismeans that the Convention rights have become grounds of judicial review: publicbodies’ acts and decisions can be quashed to the extent that they areincompatible with those rights. It is sufficient to emphasise that the effectof section 6 has been to extend the judicial review powers beyond those thatthey were prepared to assert prior to the HRA’s entry into force. WhenConvention rights are involved, judicial review will be more intense, withproportionality, rather than reasonableness.

Section 3 of the HRArequires the courts, to read and give effect to legislation in way that iscompatible with the Convention rights. The interpretive obligation arisingunder section 3 obtains in respect of all Convention rights, not only commonlaw constitutional rights, and applies irrespective of whether the domesticlegislation is ambiguous. The HRA’s most establisheduse for protecting rights is found under section 4.

This section provides thatwhen a legislative provision cannot be interpreted compatible with a Conventionright, certain courts may issue a ‘declaration of incompatibility’. The purposeof section 4 is to enable courts to issue a limited form of relief in respectof incompatible legislation, given that they are by virtue both of the doctrineof parliamentary sovereignty and the explicit terms of the HRA, incapable ofstriking down or refusing to apply an provision in an Act of Parliament, or anysubordinate legislation that has been lawfully adopted pursuant to an Act ofParliament that permits the enactment of legislation that is incompatible withConvention Rights) . The courts had no equivalent power prior to the HRA’senactment. While the powers given bythe HRA to the courts are important, courts are not only the means ofoverseeing and protecting human rights. Parliaments JCHR performs an importantrole in scrutinising proposed legislation for its compliance with human rights.Whereas the HRA is concerned with giving courts powers to deal with humanrights infractions that have occurred, the Equality and Human Rights Commissionand the Northern Ireland Human Rights Commission seek to ensure that publicbodies act in ways that, in the first place, are compliant with human rightsstandards.

Strong views have beenexpressed by commentators about how far courts should press their power undersection 3, and about the principles that should inform the exercise of thatpower. One reason why there has been controversy about section3 is that itprovides little guidance about how the power it confers should be exercised.The fact that courts are only required to interpret legislation compatibly withthe ECHR clearly suggests that there is a limit as to how far they should go –but the precise nature of that limit is unclear from the text of the HRA. Inthe absence of textual guidance, the true extent of section 3 inevitably fallsto be determined by reference to boarder constitutional considerations. This point is clearlyacknowledged by Adam Wagner. He argues that the courts primary responsibilityis to find the interpretation of the legislation that best gives effect to thatintention. On this view, the requirement imposed under section 3 of the HRA isone that is different to the pre-existing constitutional culture, and arelatively narrow view of section 3 is therefore likely to commend itself toadherents of the constitutional will.

Aileen Kavanagh, for example, argues thata wide conception of the section 3 duty should be resisted, because it would bepotentially damaging both to the authority of Parliament and the separation ofthe judicial and legislative functions. There are many answers thatcould cover the extent of the discretion enjoyed by the legislature on thematters that touch upon human rights. There is a very simple way of saying thatlegislatures capable of making primary legislation have complete discretion,because they are fee, as a matter of domestic law, to enact provisions that areincompatible with Convention rights and to ignore any declarations ofincompatibility made in respect of such provisions.

However on a deeper level,it needs to address the position of the administrative bodies and others thatare unable to cloak their decisions and policies with the force of primarylegislation; and more generally how much discretion primary legislators have ifthey wish to avoid judicial intervention, whether by means of a strained section3 interpretation that may frustrate legislative intention, or a section 4 declarationof incompatibility. The HRA has substantially enhancedthe protecting afforded to human rights in the UK law. In doing so, it has contributedin a fundamental way to the shift from a more political to a more legal form ofconstitutionalism, and has become an important limitation upon the extensive powersof the executive branch. However the HRA is not a constitutional Bill of Rights,therefore it does not form part of an entrenched constitution that enjoys a speciallegal status. As a result the HRA is vulnerable to being amended or repealed justlike any other piece of legislation. It would be mistaken to overemphasisethe extent to which the HRA marks a transition to a newly constitution, the ultimateguarantee of human rights remains the political, not the legal process.