Human Rights in the UK

INTRODUCTION

The United Kingdom has had a history in identifying the need to establish rights of the people and ascertain them privileges and freedoms in their way of life. This has been particularly seen in the form of Magna Carta in 1215 followed by the Bill of Rights in 1689 in order to uphold the essence of liberty of people but it had not expanded on the right to freedom in one’s personal life which has been misinterpreted and overridden for a long time. However, the Universal Declaration of Human Rights (UDHR) in 1948 had recognized the human rights internationally and formally ended the tragic consequences of the Second World War by recognizing the dignity and rights of people that should be free from any discrimination and preserve equality for all. The European Convention had incorporated the principles laid down in the UDHR and has become one of the fundamental guiding principles of the British Constitution. The primary idea was to ensure that the executive organs function transparently and also provide assistance in decision-making or incorporate the spirit of the document in the domestic forum. The European Convention of Human Rights (ECHR) has been functioning in the UK since the 1953 and any breach that may have occurred regarding the fundamental rights of the human beings would approach the Strasbourg Court. The need to compile a comprehensive legislation specially constructed to govern the fundamental human rights of the people had begun in the 1990s and thus the Human Rights Act was given shape in 1998 and came into force in 2000 ascertaining a safe space for the domestic human rights.

The interpretation of laws in the UK must be compatible with the Human Rights Act even though the parliamentary sovereignty is maintained as the legislature that is in question can be amended as per the power of the parliament. The actions of the public body must be in congruent with the Human Rights Act, if not the violation of any right can be challenged before the court. However, the Human Rights Act operates via the “Dialogue Model” that is different from the Bill of Rights governing in the US allowing parliamentary sovereignty to persist and decide on the amendment of the legislation if required.

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1. Ewing, K. D. "The Human Rights Act and Parliamentary Democracy." The Modern Law Review 62, no. 1 (1999): 79-99. Accessed January 20, 2021. http://www.jstor.org/stable/1097075.
2. ibid
3. Liberty, The National Council For Civil Liberties, ” A parliamentarian’s guide to Human Rights Act”, 2010 ISBN: 978-0-946088-58-4 < https://www.refworld.org/pdfid/4ed640552.pdf> accessed on 20th January, 2021

Dicey had given substantial importance to the “Parliamentary Sovereignty’ which emphasised on the law-making power with sufficient freedom and devoid of any limitation on exercising parliamentary power. Since the Constitution is unwritten, therefore, there is no superior law that constraints the power of parliament and leaves no binding measures neither on the predecessors nor on the successors.

Thus, this essay will critically discuss whether the presence of the Human Rights Act, 1998 is a threat to the parliamentary sovereignty or not. It shall discuss the prevalence of the Human Rights Act, 1998 and its relation with the European Convention of Human Rights. The position of the legal obligation on the HRA and the functionality of the parliament taking account of the interpretative obligation that actually allows the supremacy of Parliament to keep its position intact.

Critical Analysis of the power of Human Rights Act 1998

The introduction of the Human Rights Act, 1998 have changed the scenario with respect to the position of the parliamentary supremacy that was functioning before the introduction of the legislation. This spirit of this Act has been attached to the entire legislative framework that establishes governing principle to protect and uphold equality, freedom, liberty of the individuals. Therefore, this Act cannot be constrained and subjected to only one domain of law rather it touches each and every arena. Initially, due to the absence of a written Constitution, the courts would step in and interpret in cases of ambiguity that would uphold the meaning closest to ECHR but in cases there is no ambiguity the courts are free to interpret according to the law even if it does not satisfy the ECHR. Since the position was extremely difficult as with every breach and violation, the individuals would have to approach the Strasbourg Court but the domestic legislation has ended that situation and allowed the HRA, 1998 to ascertain the fundamental human rights and allows the prevalence of a dialogue in between each organ of the government be it the Executive, Legislature or the Judiciary.

The question does arise whether parliamentary sovereignty is absolute or not and in cases of dispute between the domestic law and the ECHR. The domestic legislation does not provide with any obligation to strike any laws framed by the parliament but the scenario with respect to international law seems to be different and introspects whether the judgments of ECHR is a mandate to UK or not.

1. Rivka Weill. "Dicey Was Not Diceyan." The Cambridge Law Journal 62, no. 2 (2003): 474-93. Accessed January 20, 2021. http://www.jstor.org/stable/4509005.

In the case of R (Ullah) v. Special Adjudicator it was supported that Section 2 of the HRA, 1998 stating that the jurisprudence that governs the bodies in Strasbourg must be given importance while a question of law is determined by the domestic law in the UK. Even though these judgments are not held compelling but is seemed to have sufficient relevance that may aid in implementation and interpretation of any question of law. It has also seen as a impediment to the law making power of the parliament.

The legal obligation

UK has an obligation under the European Convention on Human Rights in executing it’s judgments under Article 46 of the ECHR which was reflected in the case of Chester and McGeoh v. Secretary of State for Justice and Another (2013) where Lord Sumption had given an interpretation that the United Kingdom is obliged to follow the decisions made in the ECHR and the terms are absolute. The spirit of UK is largely guided by the rule of law and it was held by many that the failure to abide by the obligations of ECHR would be a violation of the rule of law. This has been substantiated by Lord Mackay that this legal obligation does not undermine the Parliamentary Sovereignty followed in UK. It was reinstated by him that the long followed doctrine of parliamentary sovereignty will not be attacked since it is up to the parliament to withdraw is membership and position from the Convention if it wills but as long as it is a part of the international body, abiding by the principles of ECHR not only sets an example for other countries but provides for a solid system that the domestic laws eventually end up following since the primary aim and objective revolves around ensuring that the human rights of each and every individual is respected and protected. This views have not been assented by the Lord Chief Justice along with members of Chief Justice, wherein their primitive idea was to rectify the compelling position of ECHR on the adjudication of the Supreme Court and would refrain from changing the domestic law completely. The Section 2 of the Human Rights Act is merely a provision that makes way for the consideration of the provisions of the European Court of Human Rights and does not have a binding effect.

1. R (Ullah) v. Special Adjudicator [2004] UKHL 26
2. Beloff M J ‘What does it all mean?’ in Lammy Betton (ed) The Human Rights Act 1998: What it Means Martinus Nijhoff Publishers, London 1999
3. Chester and McGeoch v Secretary of State for Justice and another [2013] UKSC 63
4. House of Commons Library, UK Parliament, “ Parliamentary Sovereignty and European Convention on Human Rights” 2014 , < https://commonslibrary.parliament.uk/parliamentary-sovereignty-and-the-european-convention-on-human-rights/> accessed on 20th January, 2021

The Interpretive Obligation

The Section 3 of the Human Rights Act obliges that the legislature is interpreted by the courts in a way that does not contravene the provisions of the European Convention and remain compatibility as far as the power of the domestic law reaches. The adjudication of such legislation is mostly done with the effort to comply with the provisions of ECHR. In cases of an ambiguous language, it is generally judged and interpreted under the presumption that the idea of the legislation in question was framed in order to be in consonance with the Convention. However, in situations wherein the provisions of the Human Rights Act are not in congruence with the European Convention, it can resort to Section 4 of the HRA and may declare the incompatibility. In Ghaidan v. Godin Mendoza, provides a purposive approach where it is not essential for the courts to interpret any case in light of original intention of the statute and the courts have th power to interpret it differently as best suited. This also reveals that the supremacy of the parliament is in no way challenged and has the power to uphold the incompatibility faced while enacting any legislation that may be required. Taking recourse of Section 4 of the Human Rights Act does not declare invalidity but only the “incompatibility”. This “interpretive obligation’ has been seen in the case of R v. A, the ‘rape shield’ acted in interpreting the defence, or the ‘Presumed Parliamentary intention’ in the case of R v SSHD speaks of the parliament’s original intention to abide by the Convention. The expression "so far as it is conceivable to do as such," opens up a potential for strife between these two communicated expectations of Parliament as there is an issue of which aim the courts ought to concede. There are circumstances whereby it is difficult to decipher enactment perfectly with Convention rights

1. Ibid
2. Steyn, Lord ‘Incorporation and devolution — a few reflections on the changing scene’ [1998] European Human Rights Law Review 153
3. Ghaidan v. Godin Mendoza 2002] EWCA Civ 1533; [2004] UKHL 30

The court also does not reserve the power to undermine the parliamentary sovereignty therefore, keeping it absolutely free. It is the parliament that decides whether the Human Rights Act, 1998 is still relevant and if proven otherwise, the parliament also reserves the power to either amend the law or completely repeal it. In case any Bill is introduced, by the virtue of Section 19 of the Human Rights Act, 1998 the compatibility of the introduced Bill with the Convention via statement. These statements can function as proper evidences in cases of a dispute and are attended immediately. It is on deep scrutinization the legislation will be accepted and will not be accepted without any discussion and effort to make it in alignment with the European Convention.

The conflict ideally arises since there are no established guiding principles on the amount of interpretation that are made and the extent of what interpretation is reasonable and seems congruent of the Convention. Whether the statements that are scrutinized and considered are interpreted ideally or ‘radically’ is a question that does not have a black and white determination. These have in fact come in the way of blazing questions of parliamentary sovereignty and the HRA, 1998.

Conclusion: The Myth

It is in fact considered a myth that the Human Rights Act, 1998 functions arbitrarily and in a way that may threaten the parliamentary sovereignty. It has been criticised and discussed by many sectors of the government but the ideal purpose of the HRA act is to provide sufficient space for a dialogue that may be exchanged between the courts and the law-making body. The intention is always to find a leeway that provides for an interpretation that is complied by the ECHR and if such is not possible, the interpretation may be driven to an extent that is to the best of the Parliament’s reach. It Is no way disregarded but the supremacy of the parliament is such that it has always considered the best possible interpretation abiding by the original intention as well as the best suited interpretation as per the case. Independency of the judicial body is in no way compromised neither it functions under the restriction of any other organ since the rule of law is the spirit of the United Kingdom and providing satisfactory power to exercise the power is the most relevant option.

Dig deeper into Human Rights Challenges in Shunibia with our selection of articles.

1. Lester and Pannick (eds) Human Rights Law and Practice Butterworths, London 2000
2. Irvine of Lairg, Lord [the Lord Chancellor] ‘Activism and restraint: Human rights and the interpretative process’ The 1999 Paul Siegart Memorial Lecture, London 20 April 1999

BIBLIOGRAPHY

Journals/ Articles

• Ewing, K. D. "The Human Rights Act and Parliamentary Democracy." The Modern Law Review 62, no. 1 (1999): 79-99. Accessed January 20, 2021. http://www.jstor.org/stable/1097075.
• Liberty, The National Council For Civil Liberties, ” A parliamentarian’s guide to Human Rights Act”, 2010 ISBN: 978-0-946088-58-4 < https://www.refworld.org/pdfid/4ed640552.pdf> accessed on 20th January, 2021
• Rivka Weill. "Dicey Was Not Diceyan." The Cambridge Law Journal 62, no. 2 (2003): 474-93. Accessed January 20, 2021. http://www.jstor.org/stable/4509005.
• Beloff M J ‘What does it all mean?’ in Lammy Betton (ed) The Human Rights Act 1998: What it Means Martinus Nijhoff Publishers, London 1999
• House of Commons Library, UK Parliament, “ Parliamentary Sovereignty and European Convention on Human Rights” 2014 , < https://commonslibrary.parliament.uk/parliamentary-sovereignty-and-the-european-convention-on-human-rights/> accessed on 20th January, 2021
• Steyn, Lord ‘Incorporation and devolution — a few reflections on the changing scene’ [1998] European Human Rights Law Review 153
• Lester and Pannick (eds) Human Rights Law and Practice Butterworths, London 2000
• Irvine of Lairg, Lord [the Lord Chancellor] ‘Activism and restraint: Human rights and the interpretative process’ The 1999 Paul Siegart Memorial Lecture, London 20 April 1999

Statutes

• Magna Carta 1215
• Bill of rights 1689
• Human Rights Act 1998

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1. Supra 3

• Universal Declaration of Human Rights 1948

Cases

• Chester and McGeoch v Secretary of State for Justice and another [2013] UKSC 63
• Ghaidan v. Godin Mendoza 2002] EWCA Civ 1533; [2004] UKHL 30
• R (Ullah) v. Special Adjudicator [2004] UKHL 26