2. Has the dominant role in Parliament in the UK constitutional system been undermined by the Human Rights Act
In order to answer the question in a satisfactory manner analysis should be given to the traditional view of parliament in the UK constitution. Dicey remains the most infamous academic on the subject at hand. Craig, the author of Administrative Law, refers to Parliament??™s dominance which is underlined by Dicey. Dicey always proclaimed that Parliament was supreme in the UK constitution. This gives rise to the term Parliamentary monopoly. In accordance with Dicey??™s rule of law and the place of parliament, Parliamentary monopoly states that governmental power stems from Parliament. Craig corroborates this view:
???This means that all governmental power should be channelled through parliament in order to that it might be subject to legitimating and oversight by the Commons. There was a belief in the nineteenth century albeit not universally shared, but held by Dicey, that the Commons could and did control the executive, and that all public power should be subject to to legislative oversight.??? Craig, continuing, ???secondly, Dicey used the rule of law to reinforce sovereignty in the sense of parliamentary monopoly.???
Some academics may claim that Dicey??™s theory is an old relic and a distant concept to the current constitutional position of parliament. The introduction of European Union law coupled with the Human Rights Act 1998, subsequently means that a statement exclaiming Parliament is the highest authority is not a totally unequivocal statement. The current hierarchy is one in which European law sits at the top of the tree. As Lord Slynn explains, there is a significant impact on the constitution:
?????¦.it must be enforced in the United Kingdom courts in relation to Community law matters, but not in domestic law. So the convention becomes in part of our law through the back door because we have to apply the convention in respect of Community law
matters as a part of Community law.???
The scope of the HRA inevitably becomes a vital consideration in answering whether Parliament???s dominance has been undermined. An early hypothesis can be established by Bradley and Ewing Constitutional and Administrative Law . The writers indicate that Parliamentary sovereignty is unaffected in certain areas at least:
??? The Convention does not cover the whole field of human rights. It omits economic and social rights and is confined to certain basic rights and liberties which the framers of the Convention considered would be generally accepted in the liberal democracies of Western Europe.???
The above statement suggests that the HRA has an impact on the sovereignty of parliament with regards to individual liberties. Alternatively, there remains an acceptance that certain rights are outside the scope of the Act such as, economic, social and public policies. The reason for this being that it would be undemocratic for non-elected bodies to have such a say. This will be touched upon later in the discussion.
However, contrary to the suggestion that Parliament is no longer sovereign over an individual??™s rights is misperceived. Some legal academics would take the view that if this writer was to reach this conclusion that he would be guilty of wishful thinking. It is the same Labour government that introduced the Freedom of Information Act 2000 that, introduced the HRA. It is then that some cynics will allege that the Human Rights Act is a similar illusion to that of the Freedom of Information Act. The rationale for this statement is that this writer believes that some theorists would have you believe that the relationship between parliament and the HRA in the constitution is like that of an ice glacier at sea – above the surface it seems that the HRA is of the utmost importance, however, in reality, the dominant part of the glacier is underwater as too, is
Parliamentary sovereignty in the constitution. While it has been previously mentioned that the, ???Diceyan notion of Parliamentary sovereignty has been much debated and sometimes doubted, the majority view among British constitutional scholars seems to be
that Dicey??™s position is still basically sound.??™ The right remains with Parliament to make or unmake any law whatsoever. Therefore, in actuality the HRA could be here today and gone tomorrow. At this early stage some may comment that the HRA may be a temporary stop-gap on the unfettered dominance of parliament, especially if the next government, which may not be Labour, repeals the act. A domestic ???Bill of Rights???, as some commentators argue, is the only way fundamental rights will ever be entrenched in the constitution. As the HRA can be repealed rights must be enshrined in a constitutional instrument allowing for no possibility where the subsequent rights can be altered or abolished.
Nonetheless, it is necessary to debate whether such incorporation is needed. It goes without saying that such entrenchment would encroach on Parliament??™s sovereignty. ???Suppose the statute of incorporation were to provide that subject to any abrogation or derogation in any later statute the rights specified in the Convention were to be fully recognised and enforced in the United Kingdom according to the tenor of the Convention. That would be good enough for the judges??¦??¦.save in quite extraordinary circumstances one cannot imagine any government going to Parliament with a proposal that any human right guaranteed by the Convention be overridden.??™
Lord Bingham expresses agreement . Lord Bingham doubts incorporation of the Convention further when addressing the problems one Convention can have on different cultures:
??? What I simply do not understand is how it can be sensible to entrust the decision of
these questions to an international panel of judges in Strasbourg- some of them drawn
from societies markedly unlike our own???.
This serves as an argument against detracting Parliament??™s dominance, and opposes
the ideal of entrenchment. Perhaps, this is not doing enough to address the current situation. Although, the issue of entrenchment may help answer the question indirectly.
The Purpose of the Human Rights Act
???Britain offers much less formal protection to central freedoms than most democracies do, including most of Britain??™s neighbours in Europe. These democracies have written constitutions that guarantee individual freedom???. Foster concludes, ???These difficulties were reflected by the number and type of cases brought against the United Kingdom under the European Convention of Human Rights and culminated in the passing of the HRA 1998.??™ The general preconception is to some degree that the United Kingdom has not been able to give necessary weight to human rights issues. Again, using Foster, ???on countless occasions the United Kingdom was held to have failed to achieve the correct balance between the protection of fundamental rights and securing of other social or individual goals.??™ Criticising further, Foster addresses the problem as having resulted from the lack of a proportionality doctrine to ensure rights are not interfered with or at least not disproportionately. This gives further weight to the idea that in order to achieve uniformed rights that are constantly upheld, incorporation is needed. It seems though that the use of the HRA is contradictory to the purpose it was introduced. The purpose was to introduce rights that could be enforced in domestic courts. This eradicates the drawn out process of going to Strasbourg for the European Court of Human Rights. In other words, ??™it is to make more directly accessible the rights which the British people already enjoy under the Convention??™. Dworkin proclaims, Parliament enacted a statute thus, making it enforceable by British judges in British courts. In turn making it part of British law. The contradiction emerges from a previous point that
there is no attempt to enshrine the HRA. The author Rowe observes the contradiction when he states:
???It was felt that entrenchment would not be in keeping with our constitutional tradition. This preserves the constitutional position that parliament could, in principle, withdraw
from the Convention and repeal the Act. It should be said, though, that this would be politically unlikely, since it would amount to parliament expressing the view that it did not respect human rights. In any event, as we will see, the Act preserves parliament??™s sovereignty, so that any law passed by Parliament prevails even if it should infringe the Convention.???
On the other hand, this suggests that entrenchment is not needed because it would be a political disaster for Parliament if they were to repeal the Act. Yet, it shows the Act was never intended to alter the UK??™s constitution or, to substantially shift constitutional power from parliament to the courts. At this juncture it is key to note that the duties imposed on the United Kingdom includes amending laws and procedures which are in breach of the convention, hence, it has a role in creating rights in domestic law and reducing the dominant effect of Parliament. Even though the effect is limited it is pivotal that the mechanisms in the HRA are used in order to effect domestic law.
Provisions of the Human Rights Act
The provisions of the Act are also a relevant consideration because the content of the Act can answer if the Act has, and why, it has an effect on Parliament??™s dominance. Section Two of the Act refers to ???law and interpretation which has been built up by the
European Court and other bodies set up by the convention must be taken into account.??™ This not only prevents cases going to Strasbourg but, suggests that ???taking
into account??™ is not binding on domestic law. Moving on, the most focal sections of the Act includes section three and four. Section three requires that legislation must be ???read and given effect which is compatible with the Convention rights.??™ The courts then receive
the power to favour an interpretation in light of the convention. This was achieved in R v. A (No.2) when the courts were able to accomplish compliance in accordance with
the Convention by adjusting, or departing from language of the applicable statute. Some may argue that it gives the courts too much power and, ultimately, that, Section Three conveys onto the courts free rein to alter personal and moral values under an interpretive cloak.
The courts use a number of techniques in using Section Three. Firstly ???reading down??™ is a method of narrowing words with expansive meanings. Secondly, ???reading in??™ requires words to be added to realise the relevant right. Lastly, ???reading out??™ refers to words being removed. Because the Act preserves Parliament??™s dominance the courts are reluctant to denounce Parliament??™s legislation. The courts are then under pressure to adjust statutes. The pressure stems from a reluctance to use Section Four. This point is confirmed in R v. A (No.2) . Lord Steyn explained that interpretation under Section Three is to be ???the main remedy with a declaration of incompatibly a measure of last resort.??™ Section three allows for judicial review of the legislature and side-step incompatible law.
If impossible to achieve, then, section four allows for a ???declaration of incompatibility.??™ As demonstrated previously, the courts are reluctant to entertain Section
Four. The section may allow for such a measure to be taken, nevertheless, much of the Act is ineffectual as the Act doesn??™t permit the courts to declare laws passed by Parliament as unlawful. It seems paradoxical to the incorporation of the Act that laws passed that are contradictory cannot be seen to be unlawful. The underlying reason is
again a democratic one. Kebilene is testament to this line of investigation when it is transparent that the Act was drafted in such a way as to preserve Parliament??™s dominance and, forbid the courts receiving too much power to alter their position in the
constitution. Another case that substantiates this point is R v. Lyons . It appears the Act does not challenge the supremacy of Parliament and, sections such as Section
Four- when making a declaration of incompatibility serves only as a polite request to Parliament to reconsider the legislation. As expected, Parliament??™s sovereignty is unaffected by the courts justifiable disinclination to get involved in social and political arenas. Yet, the court may even have an inconsistent approach in this area.
Broad Social Policy
Despite their unwillingness to become involved in the political arena the courts took a different route in cases such as Chahal v. United Kingdom. This case involved the detention and subsequent deportation of a suspected terrorist. Despite, allegedly, posing a threat to national security the court felt that it was contradictory to the suspect??™s human rights, even, in light of his behaviour. This is one of few examples where the courts frustrated Parliament??™s dominance. The general rule is one that can be illuminated by the comments made by Lord Nicholls in the case of Wilson v. First County Trust Ltd (No.2) :
??? The court will reach a different conclusion from the legislature when it is apparent that the legislature has attached insufficient importance to a person??™s Convention right??¦. The more the legislation concerns matters of broad social policy, the less the courts will be ready to intervene.???
One need only examine the case of YL to see the courts concurring with this logic.
The courts have been burdened with a journey into the unknown due to the HRA and
thus, attempt to enforce only the basic and fundamental rights that should reasonably be expected to be exercised in our society. Cases will show that when something may concern more than an individual??™s rights, for example, the public??™s rights, the individual will not take priority and, the court will not interfere with the legislatures wishes. This risk assessment or balancing act generally revolves around suspected terrorism cases. Contrary to wide opinion inflated by media reports, the HRA does not alter Parliament??™s dominance. Nonetheless, Parliament??™s sovereignty is not absolute in this area as the
courts can be inconsistent in their approach. The decision in the ???SIAC??™ would have undoubtedly pleased those in Westminster, and the author Feldman:
???I say that the right to be protected from the death and destruction caused by indiscriminate terrorism is at least as important as the right of the terrorist to be
protected from torture and ill-treatment.???
What is essentially being stated is, ???politicians are better placed than judges or lawyers to assess the risk of terrorism and the measures needed to counter it, and the judges act foolishly and illegitimately when they seek to uphold the freedom against government measure to counter terrorism.??™ Feldman??™s comments can be connected to the question. Certain human rights are not always acknowledged leaving Parliament??™s dominance intact. In such cases as these there is an admittance by the courts that even though they are obliged to prevent Parliament and Government treating people in such a manner, they, will not detract from their power as it is outside of the courts??™ realms and, any attempt to do so would be foolish. This can usually be explained by expectations of expertise in the relevant authorities, as in Rehman. Chahal is an example of the possibly inconsistent approach by the courts and shows that the HRA has the ability, if used, to prevent deportation of suspects. Only a small detraction from the sovereignty of
Parliament occurs because Parliament challenges the courts with the usual ???public safety??™ or, ???in the public??™s interest??™ requirement. These national security considerations inevitably result in the courts looking to Parliament rather than the HRA. The courts utilize other practices to avoid frustrating the legislature. Deference is one such way and is the next topic discussed.
How deference keeps Parliament??™s dominance intact
The discussion on deference was brought to the forefront in R (ProLife) v. BBC. Extensive analysis was given to the meaning of deference and it was concluded that it refers to the relationship of the judiciary and the branches of Government. Lord Hoffman played down the contentious issue of deference:
???In a society based upon the rule of law and the separation of powers, it is necessary to
decide which branch of Government has in any particular instance the decision-making power and what the legal limits of that power are. That is a question of law and must therefore be decided by the courts. This means that the courts themselves often have to decide the limits of their own decision-making power. That is inevitable. But it does not mean that their allocation of decision-making power to the other branches of government is a matter of courtesy or deference.???
Lord Hoffman attempts to repel criticism by suggesting the courts are merely exercising restraint upon themselves, rather than deferring to the legislature. Therefore, he claims, the courts are not enhancing Parliament??™s dominance, or, the legislatures dominance, but, preventing the courts from crossing their constitutional boundaries.
Technically speaking, deference is entwined with the previous topic on broad social policies. Some may debate that judicial deference is paradoxical to the separation of powers and give the legislature too much power, yet, others such as Lord Hope,
disagree. Lord Hope expresses his feelings in favour of judicial deference in Kebilene: ???His Lordship also stated that in this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgement which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or the person whose act or decision is said to be compatible with the Convention.??™ Again, there is a refusal that the courts are yielding to Parliament to avoid frustrating the legislature. Lord Hope here gives a democratic reason. Additionally, as alleged, supporters of the HRA will assert that ???judicial recognition of the human rights defined in the convention is not a substitute for the process of democratic government but a compliment to them.??™ In any case, legal academics may disagree believing that, the 1998 Act empowers the courts with a democratic mandate. Accordingly, deference may become essential when Parliament bestows on to the courts discretion over an executive body. Using this discretion in Belfast City Council v Miss Behavin??™ Ltd , the courts held that, legislation strikes a balance between individual rights and community interests.
The case of Roth hints that, deference serves as an instrument to ease tension between Parliament??™s dominance and fundamental rights. When demanding a reason for the existence and, establishing the practicality of deference, numerous thoughts come to mind. Firstly, deference is not envisaged by the HRA, thus, in turn, envisages that judges are to be burdened with the responsibility of guarding
human rights. Hence, replacing some of Parliament??™s authority, despite the subtly drafted Act. If not envisaged by the Act, it is palpable that the concept is judge-made.
Subsequently, judges are aware of the constitution and, too familiar with the doctrine of Parliamentary sovereignty to overstep the threshold. Secondly, the judiciary has a mindset – that their role and competence is set in stone until parliament expresses
otherwise. Thirdly, deference may inadvertently give greater weight to the dominance of Parliament, as it distorts the sanctity that separation of powers bare,. bringing the judiciary closer to the legislature leading to reduced independence for the courts. It must
be noted though, that, because the Act is drafted in a way preserving Parliamentary sovereignty, judges perhaps feel it is ironic to then use the HRA to undermine it??™s sovereignty, therefore, becoming apprehensive to do so. Sceptics however, will argue
that, ??™ a doctrine of deference threatens to displace law and reason, strictly applied, by expediency and arbitrariness??™. Deference is seen to be used because the HRA is not
Judicial Review and Proportionality
In a judicial review case, the courts must decide whether an action taken by a public authority or governmental person is within their scope of discretion. If it is improper or unlawful courts hold the power to decree that it should be squashed and, declared invalid. The HRA is pertinent because it is up to governmental officials to take account of citizen??™s rights. If they are overlooked, then there will be an abuse of discretion, as they have gone beyond their jurisdiction. Consequently, it can be challenged and quashed in a judicial review hearing. ???This is what makes judicial review an important remedy in the enforcement of the HRA, especially where having a decision
declared invalid is a more effective remedy than payment of compensation after event.??™ The HRA effectively extends the role of the courts in judicial review hearings.
Subsequently, the Act allows the courts to fetter some of Parliament??™s dominance by
acting as a check on their actions. In Daly, Lord Steyn makes a comparison to the proportionality test. He makes known the intensity of judicial review may go further than the proportionality test. Lord Steyn additionally explains that proportionality extends
beyond range of rational, and includes, the balance struck by the decision maker , as
demonstrated in R v Ministry of Defence, ex parte Smith.
The courts use the proportionality test in judging whether they are correct in interfering with Parliament in connection with human rights. In R v A ???Lord Steyn set out the essence of the test as whether the means used to impair a right or freedom were no more than was necessary to accomplish the objective, a slightly more difficult test to meet; meanwhile, Lord Hope continued to refer to striking a fair
balance between the general interest of the community and the protection of the individual.??™ This gives another indication that social policy plays a vital role in the courts philosophy concerning human rights. In Daly, Lord Steyn held that the approach of review and proportionality may yield alternative results. He too, hinted that, there was no real shift from a merits review and, there remains ample room for judicial deference. It is important therefore that analysis of the case needs to be correct. ???If the individual to whom the decision applies complains that the decision is incompatible whether or not a Convention right was correctly interpreted and applied, and arguably not to substitute its own judgement for that of the primary decision maker??™. Continuing further, ???a court will have to examine all the facts and policy arguments before the primary decision maker, accord a weighting to each, then engage in a balancing exercise to determine whether or not the interference is necessary in a democratic society in pursuit of a specified aim.??™ Again, it becomes transparent to see how important policy considerations are in any context, when, deciding whether to undermine Parliament??™s authority. In concurring with this analysis, the Court of Appeal in overruling a previous judgement, declared the Home Secretary struck a proportionate balance between the legitimate aim of the Convention in Farrakhan. This further stresses that, notwithstanding the courts using
different techniques and checks on Parliament, with regards to Convention rights, they are unwilling to become embroiled in a policy consideration versus Convention rights quarrel.
Has the Human Rights Act 1998 Undermined Parliament??™s Sovereignty
There is no doubt the HRA has had an impact on the constitutional model in the UK. Realistically??™ the HRA has affected the content of legislation passed by authorities in this country for numerous years. Although, attempting to conclude as to what extent the HRA has altered Parliament??™s dominance is no easy objective. Some legal academics decree that the HRA has significantly impacted on the structure of the UK constitution. Others, see the HRA as superior legislation that lacks sharp teeth. If coupled with
certain techniques used by the courts, for example, deference, then it is more delicate than many expect. The Attorney General has confirmed rules of international law are not directly enforceable in national courts from the perspective of individual??™s rights unless incorporated.
Accordingly, advocates of the HRA are adamant that a consensus for incorporation needs to gather pace. If such a petition is overwhelming, resulting in incorporation, Parliament??™s dominance would undoubtedly be undermined. It appears patent that the Labour government did not introduce the HRA 1998 full-heartedly. The next question to arise is whether the UK needs a Bill of Rights. In all probability, the Labour government, who reigned supreme in Parliament at the time, chose what they believed to be the better of two evils. Fenwick alludes to this in Civil Liberties and Human Rights when finishing an introductory chapter:
???The chequered history of the debate which follows suggests two things: first, that there was a general and increasing consensus for some time that the European Convention
on Human Rights should be incorporated into domestic law, and that this course should be taken as opposed to enacting a UK Bill of Rights.???
Alternatively, the current Labour government and Gordon Brown in particular, are now
advocates of a proposed ???Bill of Rights??™. This may reek of self-interest. The fact that they now feel that the HRA is insufficient for their needs can be the product of two things: firstly, they simply feel that it is requisite citizens have their rights and liberties entrenched in a constitutional document like America or; secondly, they feel that judges are not employing the HRA in a suitable way. For example, courts have taken some criticism in terrorism cases from representatives in Parliament. Forgive the sinister statement, but, I do not believe that these sort of cases, or contentious issues, were foreseen by Parliament or government, which has produced this loss of faith and enthusiasm in the HRA.
This written piece is implying, that, the HRA is not as effective on Parliament as constitutional patriots would have you believe. To say that the HRA has not significantly affected the UK constitution would be short-sighted. Alternatively, stating that the HRA has affected parliament??™s dominance is narrow-minded. The reason for the previous statement is, that, the long term position Parliament will remain constant in the constitution. As was formerly explained in this written piece, the HRA may be repealed tomorrow and, ultimately, made redundant in our constitution. Because of the dualist approach the UK has, individuals cannot seek to rely on an international treaty as a source of rights enforceable in domestic courts unless that treaty has undergone incorporation into domestic law so as to make a claim on the basis of it justifiable, by domestic courts.??™ Generally this downplays the impact foreign law has on the domestic constitution.
Nevertheless, the mere fact that European law is given more respect and compliance means that Parliament??™s dominance hasn??™t been evaporated, but, merely curbed. ???There is a vast array of international legal commitments which operate as a
very real constraint on the policy choices open to government.??™ The magnitude of European Acts is given more appreciation and worth than previous. McCrudden and Chambers justifies the latter point:
???A strong current has been carrying Britain in the direction of an increasing acceptance
of supra-national, and for the most part European, laws and institutions which may in
practice limit domestic freedom of action and circumscribe national sovereignty.???
It is apparent this essay is accepting that the HRA has slowed the flow of Parliament??™s unfettered power. This piece puts forward a different argument. If the HRA was given more weight and incorporated it would rearrange Parliament??™s position. The consideration that this document addresses is, that, if it is important to reduce Parliament??™s dominance in the interests of human rights, there is only the option of a domestic ???Bill of Rights??™ mentioned formerly. Cynically, it was suggested that the Labour
government favours a ???Bill of Rights??™ because they can draft it in a favourable light whilst still, preserving their dominance in human rights areas. Yet, realistically, it is the only way human rights are going to be entrenched. Thus, the only way that the objectives of the Human Rights Act can be successful is to, ironically, replace it with an Act that has a valid chance of changing Parliament??™s dominance with regards to human rights.
In concluding, the HRA, as the phrase goes, ???is a sheep in wolf??™s
clothing???. To extend or confer more protection for human rights and shorten Parliament??™s reach, a domestic bill of rights is pivotal. Lord Scarman produced the same
argument some time ago. ???Lord Scarman believed that the common law system had the principles and flexibility necessary to meet the challenges, but he predicted that, if it was
to do successfully, it would need to engraft a new, constitutional dimension onto the common law by legislatively entrenching a ???Bill of Rights??™. Dworkin, who has come to prominence with his legal thinking, clearly favours a domestic ???Bill of Rights??™:
???But, as I suggested, the European Convention is no substitute for a domestic Bill of
Rights interpreted and enforced by British judges trained in British traditions,??? Dworkin persists shortly afterwards, ???European countries have made the Convention part of their
domestic law, so that it can be raised and its benefit claimed in national courts. But Britain has not done so.???
This writer could be accused of not answering the question. The answer is present, but, just cased in criticism. The fact is, the HRA is given inadequate value, and, quite frankly, is not altering Parliament??™s dominance. This essay eventually reaches this conclusion. Additionally, it offers an alternative that would offer more protection for the UK??™s citizens. A ???Bill of Rights??™ would curb Parliament??™s dominance and move our rights forward, in line with a liberal twenty-first century. The biggest obstacle to achieving more liberal and fundamental rights, is that, the legality of Parliament??™s actions cannot be questioned. Hoffman and Rowe clarify:
???The Act specifically preserves the sovereignty of Parliament: it does not allow the courts to declare that any statute issued by Parliament is unlawful and so of no effect. Thus it does not change the constitutional relationship between Parliament and the courts or give the courts the power that, for example, the Supreme Court of the United States has, to declare legislation to be invalid if it is unconstitutional.???
The earlier hypothesis is indeed, held to be correct.