Has The Human Rights Act Refined Parliamentary Sovereignty?

In order to ascertain whether Parliamentary sovereignty has been refined by the Human Rights Act 1998 (HRA) and whether Government and Parliament are accountable for their actions, it is necessary to examine the status of human rights and Parliamentary sovereignty prior to the HRA’s introduction. It is then essential to examine the role of each relevant section of the HRA and how they affected human rights and Parliamentary sovereignty. It is also important to analyse the relationship between Parliament and the judiciary in relation to human rights and whether the HRA has significantly altered the balance of power between them.

Constitutional law in the UK has been affected by the absence of any written constitutional framework; this is particularly true of the powers and the position of Parliament. [1] ‘Parliamentary sovereignty’ was popularised by the view of Dicey and he described it as “the fundamental law of the British constitution.” [2] He defined Sovereignty as the power to make law, with the absence of any other legal constraint upon the power in the UK Parliament. An Act of Parliament is not subject or constrained by a higher law, such as a written constitution; one clear example of this was the extension of Parliament’s life during the two World Wars. [3] A further and perhaps more crucial implication drawn from the sovereignty of Parliament is that the Acts of its predecessors does not bind a sovereign Parliament, and thus no Parliament can bind its successors. [4]

The HRA came into force in October 2000 and represents a fundamental restructuring of the UK’s political constitution as it has transferred political power from the legislature and the executive to the judiciary. Ewing states that the HRA is “unquestionably the most significant formal redistribution of political power in this country.” [5]

Prior to the HRA, ‘British legal order was one of Parliamentary supremacy tempered by the courts evolving rules of interpretation that aided to a degree the protection of some basic freedoms.’ [6] One such rule was the presumption that Parliament did not intend to legislate so as to put the UK in breach of its ECHR obligations. [7] ‘Where legislation was ambiguous or unclear, so that one interpretation of the words used would comply with the ECHR but another would not, the court should adopt the former. Where, however, the language was clear, it had to be applied by the courts, regardless of a violation of the ECHR.’ [8]

After the introduction of the HRA, there is now a greater emphasis placed upon the protection of basic human rights as the Act’s key aim was to ‘bring rights home,’ hence the title of the Government’s proposals in the white paper “Rights Brought Home.” [9] It brought an end to the situation whereby a complainant had to go to Strasbourg to assert their Convention rights, as a claimant’s case could now be heard in British courts. When the HRA was fully enforced, it gave domestically further effect to certain rights and freedoms (Convention rights) protected by the ECHR. [10]

Section 2 of the HRA directs the courts to “have regard to the jurisprudence of the different enforcement and supervisory bodies in Strasbourg.” [11] Section 2(1) has refined Parliamentary sovereignty by requiring courts or tribunals determining questions which have arisen in connection with the Convention rights to ‘take into account’ the decisions of Strasbourg (ECHR and Committee of Ministers) so far as is relevant. However, the courts are required simply to take into account the jurisprudence of the bodies of Strasbourg, and are not bound by it. [12]

Section 2 has weakened Parliamentary sovereignty as Parliament’s law-making powers have been severely limited by the ECHR. This is supported by the case of R (Ullah) v Special Adjudicator [13] . In this case Lord Bingham stated that “it follows that a national court subject to a duty such as that imposed by Section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law, it is open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states parties to it” [14]

This “no less and no more” [15] approach was also used in the International law case of R (Al-Skeini) v Secretary of State for Defence (SSD) [16] in which 5 claimants were related to deceased Iraqi nationals killed in Iraq. The courts held that their claims would be dismissed as it was out of Article 1’s jurisdiction under the heading of the ‘extra-territorial doctrine of the effective control of an area exception.’ [17] It was also out of the scope of the HRA as the act has to be ‘construed against the existing background of the Convention and the Strasbourg jurisprudence.’ [18]

Judicial discretion of cases involving International law and its effect human rights can also be seen in R (Al-Jedda) v SSD. [19] In this case, the right to liberty and security, provided in UK law by the HRA Schedule 1 Article 5, was displaced in relation to a dual British and Iraqi national who had been detained in Iraq. [20] Parliamentary sovereignty has to some extent been weakened as both this case and Al-Skeini illustrate that the courts do give preference to cases that deal with International law. The fact that International law takes precedence over domestic law means that Parliament is no longer the supreme law-maker.

A vital feature of the HRA is the ‘interpretative obligation’ in Section 3. The most frequent use of the Act is likely to be an interpretative one [21] as the Act requires courts to interpret statutory provisions and common law in a way that is compatible with the Convention. Section 3(1) of the Act states 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 rights.”This has an effect on all cases, “civil or criminal, private or public, against private legal persons or public authorities” [22] where a convention right is at stake. The crucial words in the interpretative obligation under Section 3(1) of the Act are ‘possible’ and ‘must’, suggesting that there is an alternative. The courts are required to interpret legislation so as to uphold the convention rights unless; the legislation itself is so clearly incompatible with the Convention that it is impossible to do so. [23]

Interpretation under Section 3 has three stages. First the courts have to decide what a provision means using the ‘ordinary methods’ of interpretation; what was it that Parliament intended when it enacted the provision. Secondly the court must examine whether the provision violates any Convention rights. Finally the interpretative obligation under Section 3 is whether it can be read or given effect in a way which is compatible with Convention rights. This may possibly be a new constitutional presumption of statutory interpretation as “in all cases in which Convention rights are at play, the effect of Section 3 is equivalent to requiring the courts to act on a presumption that the intention of the legislature was to enact a provision compatible with Convention rights.” [24]

The case of R v A [25] illustrates the courts creative use of interpretation under Section 3 of the HRA. The ‘rape shield’ under Section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 restricted an individual’s defence. The House of Lords was required to consider the extent to which the rape shield was compatible with the right to a fair trial under Article 6 of the ECHR. Lord Steyn concluded that these provisions did interfere with the right to a fair trial, but opted for a creative interpretation that ensured compatibility with Article 6, so as to allow cross-examination of the complainant about recent intercourse or intimacy between her and the defendant. [26]

In addition, the courts in R v Offen and others [27] attempted to interpret legislation in accordance with the ECHR by construing Section 2 of the Crime (Sentences) Act 1997 in accordance with the duty imposed by Section 3 of the HRA. This section would not contravene the rights under Articles 3 and 5 of the ECHR if the courts applied it so that it didn’t result in offenders being sentenced to life imprisonment when they did not constitute a significant risk to the public. It is clear from Section 2’s language that the automatic life sentence was being imposed for the second serious offence committed by the offenders, and not in relation to the earlier offence. Accordingly the imposition of an automatic life sentence under Section 2 wasn’t in breach of Article 7(1) of the Convention. [28]

A Purposive interpretation is used and is a process in which judges adopt an interpretation which complies with or promotes the legislative purpose, which is a ECtHR requirement. In R v SSHD, ex parte Pierson, [29] there is a reference to “presumed” Parliamentary intention, meaning discretionary powers conferred by Parliament on the Secretary of State in absolute terms, but the presumption was that they can only be exercised reasonably. [30] Parliamentary intention under Section 3 shows that they may be two enacted intentions. One of them is in Section 3, and the other is that found in other primary legislation.

The phrase “so far as it is possible to do so,” opens up a potential for conflict between these two expressed intentions of Parliament as there is an issue of which intention the courts should defer. One question that arises is whether the HRA has modified the doctrine of implied repeal. There are situations whereby it is impossible to interpret legislation compatibly with Convention rights. This does not however, give courts in the UK the power to strike down or set aside acts of Parliament.

Even if an earlier statute infringes a Convention right and cannot be interpreted compatibly, it remains in force but subject to a declaration of incompatibility (Section 3(2)(b)). This is contrary to the doctrine of implied repeal, and as a result, to the doctrine of Parliamentary sovereignty.

One of the fundamental issues which is raised by Klug’s statement is the effectiveness of the HRA especially that of the relationship between the judiciary and Parliament. Since its enforcement, a large amount of cases, approximately 1200 in which the ECHR was considered, have been processed. However under the rules of construction laid down by Section 3, the system of precedent has been affected. It is not possible to strike down primary legislation, and interpretation is subject to “so far as it is possible to do so” This has only been successfully achieved twelve times since the enforcement of the HRA. [31]

There is a discretionary area of Judgement in which the courts have adopted that effectively undermines Parliament. This is supported by R (Gillan and another) v Commissioner of Police for the Metropolis and another. [32] It was argued that the “stop and search” provisions under Section 44 of the Terrorism Act 2000 violated Articles 5,8,10 and 11 of the ECHR. Lord Bingham stated that “it is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land. However it is not an absolute rule.” [33] The Lords in this case agreed that the threat of terrorism had changed the traditional freedom to go about our business and that the “stop and search” provisions were not unlawful. However, the ECtHR have recently overruled the courts, and declared that the provisions were illegal. [34]

The issue of whether there is a certain amount of judicial discretion is also raised in the case of R v Stephens. [35] The case concerned an appeal against a mandatory life sentence under Section 18 of the Offences Against the Person Act 1861. The court held that as there was lack of appropriate advice from counsel as to the highly likely consequence of the imposition of a mandatory life sentence following a conviction of a Section 18 offence the appeal against sentence would be allowed. This was justified by the court as the lack of appropriate advice from counsel gave rise to “exceptional circumstances” in the case of Stephens. [36]

It can be said that there is a two-stage approach to the discretionary area of Judgement in which the courts have adopted that undermines Parliament. The first stage is that of what was seen in R v A [37] in which Lord Steyn stated that “it is sometimes necessary to adopt an interpretation that is linguistically strained to avoid declaration of incompatibility.” [38] It can be said that he takes the phrase ‘so far as it is possible to do so’ as meaning that it is “more important to interpret legislation in line with the Convention rather than strictly adhering to Parliament’s intention in the Act in question.” [39] According to Marshall, the idea that judges must adopt a ‘possible’ Convention-compatible meaning under Section 3 which may depart from the true intention of Parliament has “defied coherent exposition.” [40]

The second stage is Lord Hope’s conclusions in the same case in which he identifies a line between legislating and interpreting and that the will of Parliament cannot be changed. [41] This has given greater discretionary area of judgment to Parliament and is confirmed in the case of Re S; Re W. [42] Lord Nicholls states that in applying Section 3 “courts must be ever mindful of its outer limit. The HRA reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve Parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes and the amendment of statutes are matters for Parliament.” [43]

The issue is whether the interpretative obligation under Section 3(1) of the HRA has shifted the interpretative focus away from what Parliament originally intended and weakened Parliamentary sovereignty. [44] In Ghaidan v Godin-Mendoza, [45] Lord Nicholls states “in the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is depart from the intention of the Parliament which enacted the legislation.” [46] Judges may say that they are complying with the intention of Parliament however there is a difference between enacted and un-enacted intentions. The issue is whether Parliament’s intention is a meaning or an intention. In Black Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG, [47] Lord Reid stated “we are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.” [48]

In Ghaidan v Godin-Mendoza, Lord Roger stated that “however powerful the obligation in Section 3(1) it does not allow the courts to change a substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying x is not going to happen.” [49] Lord Nicholls in the same case also went on to say that “the meaning imported by application of Section 3 must be compatible with the underlying thrust of the legislation being construed.” [50]

An issue which is raised by Ghaidan v Godin-Mendoza regards whether the courts search for a true meaning or a possible meaning. Lord Cooke stated that the responsibility has been shifted to the courts in that “Section 3 will require a very different approach to interpretation from that to which the UK courts are accustomed. Traditionally, the search has been for the true meaning; now it will be for a possible meaning that would prevent the making of the declaration of incompatibility.” [51]

The issue of whether there is a difference between true and possible meaning is raised. Now the interpretative focus is different as addressed by Lord Steyn; “the courts look at what meaning are the words capable of yielding, and can the words be made to yield a sense consistent with Convention rights.” [52] To find a Convention-compatible meaning of a legislative provision seems to be the overriding aim of the interpretative process, rather than to ascertain the intention of Parliament. Lord Nicholls in the same case states “the mere fact that the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make Convention-compliant interpretation under Section 3 impossible” [53]

The issue raised by this reasoning is whether Section 3 has diminished Parliamentary sovereignty. There is a limit to judicial rectification of the express statutory terms if this would make the Statute Convention compatible. This was stated by Lord Nicholls in Ghaidan v Godin-Mendoza in that “Section 3 enables language to be interpreted restrictively or expansively. Section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant.” [54]

Section 3 has given limited independence to the judiciary as Parliament can still legislate in conflict with the Convention rights, but it must be made in express terms. The case of R v Lambert [55] concerned the reversal of burden of proof and whether it was a legal or evidential burden violating Article 6(2) of the ECHR regarding the Misuse of Drugs Act 1971. The courts found that it is a legal burden however it could be read as imposing only an evidential burden of proof, i.e. ‘reading down the provision.’ [56] Therefore, by using the interpretative obligation in Section 3, there was no violation of Convention rights.

Prior to the Act’s introduction, courts were permitted to use the Convention as an “interpretative tool” where the supposed Act of Parliament was ambiguous. Now, courts under a statutory duty must interpret legislation accordingly with Convention rights, so far as this is possible. [57] Bonner states that the HRA ‘combines positive legal protection and enforcement of human rights with the preservation of Parliamentary sovereignty. While, as is shown in Part II, their interpretive duties have been strengthened, the courts remain unable to invalidate a statute by reference to human rights.’ [58] This is in contrast to the courts in the United States in which the US Supreme Court has the ability to review, and possibly strike down legislation enacted by Government, on the grounds that it ‘transgresses against fundamental principles enshrined in the Constitution,’ including their Bill of Rights. [59]

Section 4 of the HRA created the remedy of a ‘declaration of incompatibility’ and is applied where a court cannot interpret a statutory provision in a way that is compatible with a Convention right. In R v A (No.2), [60] Lord Steyn stated that a declaration of incompatibility “is a measure of last resort; it must be avoided unless it is plainly impossible to do so.” [61]

A declaration of incompatibility does not affect the validity of the legislation as stated in Section 4(6)(a) of the HRA. In addition, a declaration is not binding on the parties to the proceedings in which it is made as stated in Section 4(6)(b). The case of Burden v United Kingdom [62] illustrates the ineffectiveness of a declaration as a remedy. The issue regarded whether siblings who live together all their lives should have inheritance tax relief as with married couples and civil partnerships. The claimants argued there was a violation of Article 14 of the EHCR. The courts didn’t consider that the applicants could have been expected to have brought a claim for a declaration of incompatibility under Section 4 of the HRA before bringing their application to the ECtHR, a remedy which was dependent on the discretion of the executive and which the courts had previously found to be ineffective in Hobbs v United Kingdom. [63] Given that the applicants had been directly affected by a provision of domestic law, and since there was no domestic remedy which the applicants could be required to exhaust, the six-month time limit for bringing a case to the ECtHR didn’t apply.

Judicial interpretation and the application of the HRA, along with the restriction of non-absolute rights can be seen in McIntosh v Lord Advocate for Scotland. [64] It was argued that the assumption made under Section 3(5) of the Proceeds of Crime (Scotland) Act 1995 displaced the presumption of innocence in Article 6(2) of the ECHR and hence is unlawful. The Court of Appeal held that the shift of burden of proof was prejudicial to Article 6 of the ECHR. However in the case of R v Benjafield and others, [65] the House Of Lords overruled the decisions made in McIntosh and held that the express reversal of the burden of proof was justifiable as a “reasonable and appropriate response to a substantial public risk,” [66] and consequently not in contravention of Article 6(2). [67]

The case of A & others v SSHD [68] demonstrates that the judiciary can act as an important constraint against executive excesses in order to safeguard human rights. The House of Lords ruled that the indefinite detention of non-nationals, who are suspected of committing terrorist offences without a trial, violated Article 5 of the ECHR regarding right to liberty. Article 14 regarding non-discrimination was also violated because the measures were of a discriminatory nature. These measures only applied to non-nationals, even though a national could be just as likely to commit a terrorist offence as a non-national. Thus the Lords quashed the Human Rights Act 1998 (Designated Derogation) Order 2001, [69] and declared Part 4 of the Anti-Terrorism, Crime and Security Act 2001 as incompatible with Articles 5 and 14 of the ECHR. [70]

Section 4 of the HRA cannot be said to encroach on Parliamentary sovereignty, because a declaration does not invalidate the provision concerned, as stated in Section 4(6). In addition, Parliament is not required to take remedial action; although it can do so under Section 10 of Schedule 2 of the HRA. This means that Parliament’s competence to enact any law is unimpaired, although a powerful restraint has been imposed upon its freedom to interfere with fundamental rights. On the other hand, the capacity to issue a declaration of incompatibility subtly alters the allocation of powers as ‘Parliament has invited the judges to tell it that it has acted wrongly by legislating incompatibly with a Convention right.’ [71]

Section 5 of the HRA states that the Crown is entitled to notice, and to be joined as party to the proceedings, when a court is considering making a declaration of incompatibility. This enables a Minister to provide the court with information which may be relevant to the issue in question. Section 5 has given the Crown the right to intervene a Section 4 declaration, and as a consequence partially limited the power of the judiciary.

Section 6(1) requires public authorities to act in conformity with Convention rights, which may be feared as empowering courts to constrain public bodies. But Section 6(2) provides that a public authority in breach of a Convention right does not act unlawfully if it adopted the course taken because of legislation. It effectively provides public authorities with a justification for breaching Convention rights, but would be contingent on the way in which courts interpreted Section 3.