In every year of my law degree I have studied the Human Rights Act 1998. I looked at its impact on the doctrine of parliamentary supremacy in public law in my first year. I have come across the Human Rights Act 1998 when studying defamation and negligence in tort law in my second year and now, in my third year, I'm looking at it in detail in my human rights law module. In this entry, I will look at some of the elements of the HRA that make it unique and innovative in our system.
Broadly speaking, the Human Rights Act 1998 was designed to incorporate the rights contained in the European Convention on Human Rights into the UK legal system. The European Convention on Human Rights is an international treaty and in the UK’s dualist system, international treaties such as the European Convention on Human Rights are given legal effect in the domestic legal order via an Act of Parliament. The Human Rights Act 1998 does not create substantive rights itself, but rather it brings home Convention rights. The Act contains two sections which, in my view, are particularly innovative.
Section 2 creates a unique relationship between UK courts and the European Court of Human Rights. It provides that domestic courts must take into account the jurisprudence of the Strasbourg court. The nature of this obligation is key: domestic courts are not bound by judgments of the Strasbourg Court but must simply take its decisions into account.
Section 3 creates an interpretative obligation whereby UK courts must interpret domestic legislation in a way that is compatible with Convention rights in so far as it is possible to do so. The provision does not require judges to apply an artificial interpretation of domestic legislation. If an interpretation that makes legislation compatible with Convention rights is not possible, the court may make a declaration of incompatibility in accordance with section 4.
However, this can be controversial and courts are not readily prepared to take this step. A declaration of incompatibility creates tension between the judiciary and the legislature because existing legislation (which is a result of Parliament exercising its duties of creating the law) is deemed to conflict with human rights. It can also create tension between the executive and the judiciary because once a declaration of incompatibility is issued, a fast-tracked procedure is available under section 10 whereby the government can amend the law to make it compatible. This seems to supress the prerogative of the legislature to make and unmake the law.
One of the major achievements of the Human Rights Act 1998 was to create a rights culture in the UK. Prior to the Act, rights were defined negatively – individuals were allowed to do anything that was not prohibited by law – but the Human Rights Act brings into force rights that are set out positively and can be used as aggressive tools to challenge state power.
It is clear from looking at these two sections that the Act creates new obligations for UK courts and it impacts the relationship between the judiciary, legislative and executive. Given that the obligation to comply with human rights now permeates so many aspects of domestic law, the Human Rights Act 1998 could convincingly be deemed one of the most important pieces of legislation in the UK legal system.