1. University of London
Common law reasoning and institutions
Essay:
Has the Human Rights Act (1998) led to a more pronounced
judicial intervention into politics?
Submitted by:
Student name: Syeda Sabita Amin

2. Has the Human Rights Act 1998 led to a more pronounced judicial intervention into
politics?
Human rights are universal, indivisible and interdependent. They are what make us
human. It is the most important gift given at birth, and allows us to speak and commit
legal and constitutional acts freely. As for politics, politics can be defined as social
relations involving intrigue to gain authority or power1.
One of the weightiest developments in the constitution of the English Legal system was
the introduction of the Human Rights Act 1998. The major source of fundamental rights
in English law is now undoubtedly the Human Rights Act 1998 (HRA) which
implements the European Convention on Human Rights (ECHR) into English law.
Although the UK with other European states signed the ECHR in 1951, it presumed itself
having a strong record in the field of civil liberties. However, by the end of the century it
was seen that there were a series of judgments against the decisions taken in the UK
Courts in the European Court of Human Rights in Strasbourg. This created a favourable
movement for a new „Bill of Rights‟ by the Labour Party‟s Jack Straw and thus came into
being the Human Rights Act.
The Human Rights Act (HRA) is an act of parliament which received the royal assent on
the 9th November 1998 and came into force on the 1st of October 2000. The reason for
this delay was so that the courts throughout the hierarchy, from the lower courts such as
magistrate‟s courts all the way up to the House of Lords could be adequately trained in
the effect of the Act. The aim of this act was to incorporate rights that were available
within the ECHR and fundamental freedoms into UK law. However, the act reflects a
move towards the entrenchment of rights recognized under the Convention but, given the
sensitivity of the relationship between the elected Parliament and the unelected judiciary,
it has been thought expedient to minimize the change in the constitutional relationship of
Parliament and the judiciary2.
The HRA has no higher status than other Acts of Parliament in accordance with the
doctrine of parliamentary sovereignty. It is not possible for courts to override primary
legislation that is incompatible with convention rights, or to declare it unconstitutional.
This act has to a certain point changed the role of judges. As a result, judges are now seen
as more proactive and outspoken on Human Rights issues, than they were in the past
where they had not exercised a significant amount of independent constitutional power. It
should not be mistaken that judges did not play a role prior the act.
While the Act was passed to give further effect to the articles of the ECHR, it should be
noted that the act was carefully drafted in order to uphold parliament sovereignty while at
the same time show the citizens that they were protected. Certain sections of the Act
strike a lawman more than the regular layman. The Act carefully conserved
parliamentary sovereignty in the sense that courts are unable to strike down legislation on
the ground of an incompatibility with a Convention right under the Act.
1
Definition of politics from Google.com
2
Page 28, The English Legal System 8th Edition, Slapper & Kelly

3. Section 2 of the HRA requires future courts of the English Legal system to take into
account previous decisions held in Strasbourg, rather than only sticking to the doctrine of
binding precedent. The provision of the act effectively sanctions the overruling of any
previous English court authority that was in conflict of the decisions held in ECtHR. On
the other hand, this section was overruled during the case of Price V Leeds City Council3
when the decision held in the House of Lords was considered rather than that of the
ECtHR.
Thereafter Section 3 requires everyone (not only courts and tribunals, but also
administrative and other bodies which have to interpret legislation) to read and give
effect to legislation, so far as possible, in a manner compatible with Convention rights.
Two important cases revolve around this section. The first being of Ghaidan v Godin-
Mendoza4 and second being of R. v A5. The application of section 3 in Ghaidan V Godin-
Mendoza, the House of Lords by majority held that the survivor of the same sex
partnership had the same status as the spouse of a protected tenant entitled to succeed on
the tenant‟s death, as a statutory tenant. Lord Styen said that given section 3 was
supposed to be the principle reminded measure and section 4 to bet he last resort.
Nevertheless, in the case of R v A, two of the judges had different views about the
meaning of “possible”. Lord Steyn said that unless a "clear limitation on Convention
rights is stated in terms" it should be possible to interpret an Act compatibly with the
ECHR. Lord Hope however argued that you have to look at the meaning and purpose of
an Act as a whole, not just any express intention on behalf of Parliament as to whether it
is possible to interpret a statute compatibly with Convention rights or not. The House of
Lords agreed with the statement Lord Hope made and restored judicial discretion as to
what could be raised in cross examination in rape cases6. By contrast Lord Hope‟s
position taken in both R v A and R v Lambert7 is that legislation cannot be made
compatible with the ECHR if it contains provisions which, either expressively or by
necessary implication, contradict convention rights. Lord Hope seems to foresee a greater
need for the court to rely on its powers to grant a declaration of incompatibility.
If interpretation to achieve compatibility is not “possible”, then the court is empowered to
issue a declaration of incompatibility under Section 4 of the HRA, allowing the elected
branches the choice of whether or not to remedy the finding of incompatibility. Section 4
authorizes the courts to give a declaration of incompatibility in relation to legislation. In
introducing the Bill to the House of Lords, Lord Irvine rather finessed the consequences
of such action. Of a declaration of incompatibility, he said: “The statute will continue to
apply despite its incompatibility. But the declaration is very likely to prompt the
government and Parliament to respond.” Of the failure by ministers to make a statement
of compatibility, he said only: “Where such a statement cannot be made, Parliamentary
scrutiny of the Bill would be intense.” He omitted the likely legal consequence that an
3
Lexis Library Price Price and others v Leeds City Council [2005] EWCA Civ 289
4
Lexis Library Ghaidan v Godin-Mendoza - [2004] UKHL 30
5
Lexis Library R v A - [2001] UKHL 25,
6
Page 34, Gary Slapper & David Kelly (2006) – The English Legal System (8th Edition) ISBN 1-84568-
034-0
7
Lexis Library R v Lambert [2001] UKHL 37

4. appeal would be made to the European Court whose decision the government was bound
by treaty to implement. Thus, a declaration preserves the theory of parliamentary
sovereignty but does not, of course, affect the reality that even David Cameron does not
wish to challenge, of our membership of the Council of Europe and, indeed, the
requirement on members of the European Union to respect the European Convention on
ultimate pain of expulsion (Article 6 Treaty of Amsterdam).8
Additionally, Section 5 requires for the Crown to be notified when a court considers
issuing declaration of incompatibility and the appropriate minister is entitled by the party
to the case of reference.
Furthermore Section 6 declares it unlawful for any public authority to act in a way which
is incompatible with the ECHR. And if there is such a violation, Section 7 enables any
person, with standing, to raise an action against a public authority which has acted or
proposes to act in such a Convention-contravening manner. A person will have standing
to do so provided they would satisfy the "victim test" stipulated by Article 34 of the
Convention. Subsequently, Section 8 empowers the court to grant such relief or remedy
against the public authority which is in breach of the Act as it considers just and
appropriate. However, if a public authority is acting under the guidance of some primary
legislation, that is itself incompatible with the ECHR, the public authority will not be
liable under the Section 6.
Finally section 19 requires a Minister in charge of a Government Bill to make a statement
before Second Reading as to whether the Minister considers the Bill to be compatible
with the Convention rights. If such a statement cannot be made, the responsible Minister
must make a statement that the Government wants Parliament to proceed with the bill
regardless of the inability to make a statement of compatible.9
The reality today is that judges DO play a role in politics shielded by the words "common
law" and "policy". As the years progress for the act, judges bear the responsibility to
„develop‟ the law with the Human Rights Act, but keeping parliament sovereignty in
mind. One question that comes to thought is that how the judges will draw the boundary
lines between section 3 and section 4 of the act. Where the line would be drawn that an
act even after been taken „so far as possible‟ be declared „incompatible‟? Only judges
themselves can draw themselves within that fine line and decide how far into politics they
would like to take their legal decisions with their own discretion. Nevertheless, it is
definitely certain that the HRA is meant to preserve the distinction between interpretation
and the enactment of statues.10
8
Westlaw UK: Roger Smith (2006) – Human Rights and the UK Constitution: Can Parliament legislate
“irrespective the Human Rights Act?”, Legal Information Management
9
Julie Debeljak (2003) – The Preservation of Parliamentary Supremacy in the context of rights protection,
Australian Journal of Human Rights
10
Page 117 Adam Geary, Wayne Morrison & Robert Jago (2009) –
The Politics of the Common Law Perspectives, Rights, Processes, Institutions
ISBN 978-0-415-48153-3

5. BIBLIOGRPAHY
1. Adam Geary, Wayne Morrison & Robert Jago (2009) –
The Politics of the Common Law Perspectives, Rights, Processes, Institutions
ISBN 978-0-415-48153-3
2. Gary Slapper & David Kelly (2006) – The English Legal System (8th Edition) ISBN 1-
84568-034-0
3. James Holland & Julian Webb (2006) – Learning Legal Rules (6th Edition) ISBN 978-
0-19-928250-0
4. David Jenkins (2009) – Common Law Declarations of unconstitutionality,
International Journal of Constitution (Westlaw UK)
5. Randal N.M. Graham (2009) – What Judges want: judicial self-interest and statutory
interpretation, Statute Law Review
6. Sangeeta Shah & Thomas Poole (2009) – The impact of the Human Rights Act on the
House of Lords, Public Law
7. Tom Hickman (2008) – The courts and politics after the Human Rights Act: A
comment, Public Law (Westlaw UK)
8. Sandra Fredman (2006) – From deference to democracy: The role of equity under the
Human Rights Act 1998, Law Quarterly Review (Westlaw UK)
9. Roger Smith (2006) – Human Rights and the UK Constitution: Can Parliament
legislate “irrespective the Human Rights Act?”, Legal Information Management
(Westlaw UK)
10. T.R.S. Allan (2006) – Human rights and judicial review: a critique of “due
deference”, Cambridge Law Journal (Westlaw UK)
11. Julie Debeljak – The Preservation of Parliamentary supremacy in the context of rights
protection, Australian Journal of Human Rights
http://www.austlii.edu.au/au/journals/AJHR/2003/10.html#Heading59
12. Mark Evans – New Labour and a Rise of a new Constitution
http://www.york.ac.uk/depts/poli/staff/mge/2008%20PSA%20Paper%20on%20Constituti
onal%20Reform.pdf