LSM – Human Rights Act 1998

‘The Human Rights Act has taken power away from parliament and handed it to
the judiciary; the Act must be replaced or amended.'

Q. ‘It is a myth that the Human Rights Act 1998 has increased the power of the
judiciary. They only have as much power as Parliament permits them.’ Discuss.

Discuss

Human Rights is a topic that most people see from a broad spectrum. Although there

have been numerous debates on this subject, and there’s a broad spectrum of

fundamental rights that the State has granted a human being, there are only some

commonly-known rights that the citizens of a State know about. Human rights can be

defined as the fundamental, basic rights that each citizen, regardless of their caste,

color, or creed, and regardless of where they’re in, are entitled to. Furthermore, these

rights encompass all aspects tied to a human being, including social, personal,

ownership, partnership rights, and so on. The idea of having a Convention or a Charter

that safeguarded fundamental human rights stemmed after World War 2, which saw

devastating loss of life. Hence, the Council of Europe, formed in the late 1940s, created

the European Convention on Human Rights and its initial ten member states. The

number of states supporting the ECHR has risen to 47 ever since, and the United

Kingdom is also a member.

However, since the UK is a dualist state, they had to introduce an act to accumulate the

laws and regulations provided forth by the ECHR so that such doctrines align with the
fundamental principles of the UK, the principle of Parliamentary Sovereignty, Separation

of Powers, and the Rule of Law. The Human Rights Act 1998 was the statute that made

this possible. With the enactment of the HRA 1998, the courts became exposed to

increased power in specific domains. For instance, Section 2 of the HRA 1998 states

that in matters which concern the fundamental rights of human beings, the UK will take

ECHR’s past judgments into account. The keyword here is ‘will take into account’ since,

unlike the EU’s laws, the UK doesn’t have to blindly abide by them. Rather, take

references. Since the UK isn’t legally bound to follow the ECHR’s judgment, there have

been cases like R v Horncastle (2010), Manchester City Council v Pinnock (2010),

and R (Hallam) v Secretary of State for Justice (2019), where, the UK took a rather

personal approach. The reason why the UK isn’t exactly ‘excited’ to take ECHR’s

judgments into account in a greater proportion can be credited to a halted development.

Section 3 of HRA 1998 places a duty on the Judiciary of the UK to interpret the rules

and regulations put forward by the Convention so that the basic principles of the UK and

the Convention are on the same page. By doing so, one can ensure that the principles

of the UK’s legal system and that of ECHR are on the same page regarding a particular

case. In another Section of HRA 1998, Section 4, the Judiciary has also been given the

power to declare incompatibility if a particular Act put forward by the Parliament does

not complement the principles of the Convention. A practical example of such a case

can be taken from Bellinger v Bellinger (2003) where a clash between the Matrimonial

Causes Act 1973 and Article 8 of the ECHR took place. In 2004, this Act was amended

by the enactment of the Gender Recognition Act 2004. The classic case of Entick v
Carrington is also of significance here, where, the Courts disregarded a police search

since the institution didn’t have a warrant, and so, could not legally inspect the

individual. However, it is not always the case that a particular action of the government

would be disregarded. There are numerous factors to take into account. In special

circumstances, two fundamental principles are fighting against each other. For instance,

the case of Entick v Carrington. Here, two principles of fundamental human rights were

against each other, first, the right to privacy, from the claimant’s side, and the second,

the right to life, which in this case, was a foresighted circumstance, since the predicted

rebel against the government would eventually lead to riots and possible deaths.

In such a case, however, the judiciary does not have the right to nullify the law under

inspection completely; instead, it can recommend that the Parliament amend or change

these laws so that both the Parliament and the Convention are on the same page.

Nonetheless, to uphold the principle of Parliamentary Sovereignty and to create a

prominent boundary concerning the separation of Powers, the Parliament is not bound

to follow the declaration of incompatibility made by the Judiciary. Hence, it is the

Parliament’s call.

A key point to note in this discussion is that although the Parliament has the legal right

to disregard the declaration of incompatibility made by the Judiciary, it is unlikely to take

such a step. This is because there are external and internal political pressures, as well

as political pressure from opposing parties and the public, which compels the

Parliament to abide by the decision given forth by the judiciary. Here, one could argue
that the principle of Parliamentary Sovereignty seems to become vague since, in theory,

Parliament undoubtedly has the upper hand. Still, it is doubtful whether they have the

same authority when one looks at the ground reality. This argument can be further

strengthened by Bellinger v Bellinger (2003).

Further powers were granted to the judiciary as well by the enactment of the HRA in

1998. However, the above discussion is more than enough to get an idea about the

spectrum of authority that the Judiciary has obtained in modern times, compared to the

historical period of the 17th century, where the Kings could easily remove a judge if they

didn’t like his decision on a particular case.

Where there is a discussion about the Judiciary, the CRA 2005 cannot be ignored. The

Act benefitted the overall position of the Judiciary in multiple ways. Firstly, the creation

of a Supreme Court, because of which, the judicial powers of the House of Lords were

taken away. Now, there is only one superior court in the UK where cases from the lower

courts are brought for review and where matters of utmost constitutional importance are

discussed. Furthermore, it also created numerous positions within the Judicial System,

such as the Lord Chief Justice, due to the removal of the Lord Chancellor as the Judicial

Head. It also advised the Executive institutions to provide security to the independence

of the Judiciary and placed duties on the Lord Chancellor to do so. Lastly, it placed

authority within the Judiciary’s hand to maintain a check and balance on the Executive

institutions. All these changes are directly related to the HRA 1998. For instance, due to

the provisions provided in Article 6 of the ECHR, it was not appreciated to have the Lord
Chancellor decide on legal disputes when he was a member of the Executive as well

since this created the appearance of a bias. Furthermore, the case of McGonnell v UK

(2000) was also of significant importance since the whole legal discussion revolved

around the bailiff and his multi-institutional powers, which were analogous to the

position of the Lord Chancellor.

The main issue with the CRA 2005 is the power of accountability that the judiciary now

has on the executive. Firstly, a question arises: if the UK claims to have upheld the

principle of separation of powers, then why can the Judiciary hold the Executive

accountable for its actions? This is directly related to the Judicial Review. The Judicial

Review provides the judiciary with a regulatory role and works on the principles of

administrative law, whose primary function is to supervise the powers given to the

Executive and other public bodies, such that there is no unlawful action taking place,

nor are there vague legal reasons provided for a particular action. As Endicott pinned it

in his words, the primary role of administrative law is to align the public bodies with the

Rule of Law. Coming back to the criticisms regarding the CRA 2005 and the issue of

accountability, the Lord Chancellor argued that the Judicial Review wasn’t built to

pressure other institutions, nor intended to give courts the authority over government

bodies.

However, it is vital to note that the Judicial Review is mainly engaged in the

decision-making process, identifying whether the Executive gave the correct legal basis

to support its new rules and whether these legal bases are considered ‘lawful.’ Justice
Law also explained this during the case of R v Somerset County Council (1995),

when he stated the main concerns of the Judicial Review, discrediting it with being tied

to the merits of a particular decision. On these grounds, one can say that the Judicial

Review has more of a supervisory rather than an authoritative stance. Furthermore, the

process followed by the Review is a strict one and there are three grounds for it. Here,

one can take reference from the words of Lord Diplock during the GCHQ case, in

which he mentioned three grounds of review for the Judiciary: illegality, irrationality, and

procedural impropriety. However, he left the doors open for further grounds to be added

upon, keeping in mind that UK law is constantly evolving with time. Therefore, it can be

argued that the above-mentioned arguments made against the CRA 2005 may not hold

much weight since the latter discussions prove that the Judicial Review is mainly

involved with the process followed by the Executive rather than the decision, and

further, that there are strict grounds and conditions for which the Judicial Review is

applicable. In other words, one cannot simply file a case against the Executive or the

public bodies, they must have merit in the reasoning of their problems. Hence. It can be

rightfully argued that the UK has segmented the role of the Judiciary in regards to the

Executive so that separation of powers is exercised, and not one institute moves ahead

from the other in terms of power.

Nonetheless, it is due to these confusions surrounding the HRA 1998 that hinted

towards the judiciary now seeming to have greater authority over the executive branch

and the parliament in some instances. Therefore, t was demanded that the Act be

amended or repealed. Currently, there has been slight progress in this department.
However, it should be noted that there have been several tries in the past few years to

have the Act amended, and it was proposed to have a British Bill of Rights instead. The

British Bill of Rights is a bill that was originally introduced before the British Parliament

with a motive to replace the HRA 1998. It is worthy of note here that the British Bill of

Rights has always made a stance to ‘replace’ the current Act, rather than removing it.

This is unlikely to happen any time soon due to numerous reasons. Firstly, taking such

actions would invite public critique, considering that the Courts are trusted more in the

country than the politicians, as stated by Vernon Bogdanor. Furthermore, over two

decades since the Act was passed, there has been vast development in case laws,

amendments, new regulations, etc. concerning the ECHR. Hence, introducing a new

Act that aims to shift the power dynamics would be something that’ll take a lot of time

and also reset all the developments that have been done in the past. Considering the

current economic condition of the UK, such actions wouldn’t be welcomed at all. The

powers of the Judiciary and the case laws that back them have been established now,

and turning back from them would invite political, economic, social, and internal chaos.

Lastly, if the UK did leave the ECHR and repealed the HRA 1998, other countries would

state dislike towards this as well. For instance, the peace settlement, or the Good Friday

agreement in Ireland in 1998, was also achieved due to the ECHR. Making changes

now would disturb the peace settlement as well. It has also been argued that the

Sections of the ECHR that the Bill of Rights aimed to replace were not logical, and

further, unnecessary. There are other reasons tied to this proposal as well, but the

reasons already provided is enough to grasp an idea on why its application seems

rather unrealistic.