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

This assignment is going to
base on key provisions of the Human Rights Act 1998 that may impact on
parliamentary sovereignty, and present an argument either that Parliamentary
sovereignty has been preserved in the UK or that Parliamentary sovereignty has
been undermined by Human Rights Act.

Parliamentary sovereignty is
a principle of the UK constitution. It makes Parliament the supreme legal
authority in the UK, which can create or end any law. Generally, the courts can
overrule its legislation and no Parliament can pass laws that future
Parliaments cannot change.

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The Human Rights Act 1998 is
a UK law passed in 1998. It lets you defend your rights in the UK courts and
compels public organisations (including the Government, police and local
councils) to treat everyone equally, with fairness, dignity and respect.

It has been suggested that
the HRA has given the judiciary much more power than it previously had. Both
Adam Wagner and Aileen Kavanagh cover this in their articles.

In ‘Judicial Interpretation
or Judicial Vandalism? Section 3 of the Human Rights Act 1998’ by Adam Wagner,
he covers the topic of the possibility of Section 3 changing legislation
through the Courts. He states that ‘the courts have been inconsistent in their
approach to the interpretative obligation.’ However more often than not, the
courts have made is possible to change such legislations when the Human Rights
Act has been breached. However in ‘What’s so weak about “Weak-Form review”? The
case of the Human Rights Act 1998, Aileen Kavanagh covers more over how the HRA
gives the UK a more ‘strong judicial review.’ Although the courts have
considerable 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 of
protection given to human rights involves not simply rendering unlawful conduct
for example by an individual or public body, but at a constitutional level,
making it impossible or even difficult for legislation to be enacted that is
incompatible with such rights. Thus the difference between human rights and
other legal rights is that regular rights can be modified or removed by
legislation.

The HRA was a key element of
the constitutional reform programme undertaken in the early years of Labour
administration that office in 1997. It was intended tto extend the protection
of human right in domestic law in two main respects.

The effect of the HRA is to
give effect in the UK law to certain of the rights set out in the European
Convention on Human Rights (ECHR). The ECHR is an international treaty – that
is an arrangement between states that is binding upon them as a matter of
international law. Unlike many international treaties the ECHR contains an
institutional 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 to
the convention’. Claims alleging that a state party has violated relevant
rights can be brought before the Court by other state parties and by
individuals claiming to be victims of the alleged violation. If the Court finds
that there has been a violation, it has the power to ‘afford just satisfaction
to the injured party’.

All of the above statements
were true before the enactment of the HRA as they are now; the UK has thus been
bound by the ECHR as a matter of international law. Ever since the UK opted
into the right of individual petition, individuals have been able to institute
proceedings against it in the ECtHR. However what they could not do, was to
invoke the ECtHR in domestic legal proceedings. This was one of the major
factors that formed the impetus for enacting the HRA.

The HRA empowers national
courts to protect the Convention rights. These are the rights set out in
Article 2-12 and 14 of the ECHR. It is apparent from reading these rights, the
ECHR is based on civil and political rights. It is thus that the HRA centrally
concerned itself with matters such as physical liberty of the individual and
freedoms to live ones life without unwarranted interference in relation to such
matters as expression, religion and protest.

In this way, the Convention
focuses on those rights that are likely to uphold the autonomy of the
individual, considerations of equality being secondary.

The HRA forms protection
over the Convention rights in numerous ways. Firstly is by making it more
difficult for the UK Parliament to enact legislation that is inconsistent with
those rights. Section 19 of the HRA stipulates that, before a bills second
reading, the Minister responsible for it must do one of two things: either he
must make a statement of compatibility, saying that he believes the Bill to be
compatible with the Convention rights, or he must explain why he thinks the
Bill should be enacted even though he cannot undertake that it is compatible
with the Convention rights.

This system is intended to
ensure that Parliament does not enact legislation that will beach the
Convention rights: if a Minister finds himself unable to issue a statement of
compatibility, this will draw Parliament’s attention to the possibility that
the Bill may be incompatible with one or more of the Convention rights, and
will focus attention both inside and beyond Parliament – on whether there are
compelling reasons for enacting the legislation despite such putative
incompatibility.

There is however, an obvious
weakness in the system. For a variety of reasons including incompetence,
genuine misjudgement and cynical political calculation, statements of
compatibility may be issued in respect of Bills that later turn out to be
incompatible may be issued in respect of Bills that later turn out to be
incompatible with one or more of the Convention rights.

Section 6 of the HRA
provides that public authorities must act compatibly with the Convention
rights, unless primary legislation requires them to act incompatibly. This
means that the Convention rights have become grounds of judicial review: public
bodies’ acts and decisions can be quashed to the extent that they are
incompatible with those rights. It is sufficient to emphasise that the effect
of section 6 has been to extend the judicial review powers beyond those that
they were prepared to assert prior to the HRA’s entry into force. When
Convention rights are involved, judicial review will be more intense, with
proportionality, rather than reasonableness.

Section 3 of the HRA
requires the courts, to read and give effect to legislation in way that is
compatible with the Convention rights. The interpretive obligation arising
under section 3 obtains in respect of all Convention rights, not only common
law constitutional rights, and applies irrespective of whether the domestic
legislation is ambiguous.

The HRA’s most established
use for protecting rights is found under section 4. This section provides that
when a legislative provision cannot be interpreted compatible with a Convention
right, certain courts may issue a ‘declaration of incompatibility’. The purpose
of section 4 is to enable courts to issue a limited form of relief in respect
of incompatible legislation, given that they are by virtue both of the doctrine
of parliamentary sovereignty and the explicit terms of the HRA, incapable of
striking down or refusing to apply an provision in an Act of Parliament, or any
subordinate legislation that has been lawfully adopted pursuant to an Act of
Parliament that permits the enactment of legislation that is incompatible with
Convention Rights) . The courts had no equivalent power prior to the HRA’s
enactment.

While the powers given by
the HRA to the courts are important, courts are not only the means of
overseeing and protecting human rights. Parliaments JCHR performs an important
role in scrutinising proposed legislation for its compliance with human rights.
Whereas the HRA is concerned with giving courts powers to deal with human
rights infractions that have occurred, the Equality and Human Rights Commission
and the Northern Ireland Human Rights Commission seek to ensure that public
bodies act in ways that, in the first place, are compliant with human rights
standards.

Strong views have been
expressed by commentators about how far courts should press their power under
section 3, and about the principles that should inform the exercise of that
power. One reason why there has been controversy about section3 is that it
provides little guidance about how the power it confers should be exercised.
The fact that courts are only required to interpret legislation compatibly with
the 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. In
the absence of textual guidance, the true extent of section 3 inevitably falls
to be determined by reference to boarder constitutional considerations.

This point is clearly
acknowledged by Adam Wagner. He argues that the courts primary responsibility
is to find the interpretation of the legislation that best gives effect to that
intention. On this view, the requirement imposed under section 3 of the HRA is
one that is different to the pre-existing constitutional culture, and a
relatively narrow view of section 3 is therefore likely to commend itself to
adherents of the constitutional will. Aileen Kavanagh, for example, argues that
a wide conception of the section 3 duty should be resisted, because it would be
potentially damaging both to the authority of Parliament and the separation of
the judicial and legislative functions.

There are many answers that
could cover the extent of the discretion enjoyed by the legislature on the
matters that touch upon human rights. There is a very simple way of saying that
legislatures capable of making primary legislation have complete discretion,
because they are fee, as a matter of domestic law, to enact provisions that are
incompatible with Convention rights and to ignore any declarations of
incompatibility made in respect of such provisions. However on a deeper level,
it needs to address the position of the administrative bodies and others that
are unable to cloak their decisions and policies with the force of primary
legislation; and more generally how much discretion primary legislators have if
they wish to avoid judicial intervention, whether by means of a strained section
3 interpretation that may frustrate legislative intention, or a section 4 declaration
of incompatibility.

The HRA has substantially enhanced
the protecting afforded to human rights in the UK law. In doing so, it has contributed
in a fundamental way to the shift from a more political to a more legal form of
constitutionalism, and has become an important limitation upon the extensive powers
of 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 special
legal status. As a result the HRA is vulnerable to being amended or repealed just
like any other piece of legislation.

It would be mistaken to overemphasise
the extent to which the HRA marks a transition to a newly constitution, the ultimate
guarantee of human rights remains the political, not the legal process.