When [the ECHR] was written, in the aftermath of the second world war, it set

Transcription

1 When [the ECHR] was written, in the aftermath of the second world war, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you ve got to apply the human rights convention even on the battlefields of Helmand. And now they want to give prisoners the vote. I m sorry, I just don t agree. Our parliament the British parliament decided they shouldn t have that right. Let me put this very clearly: we do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative government after the next election, this country will have a new British Bill of Rights, to be passed in our parliament, rooted in our values. And as for Labour s Human Rights Act? We will scrap it, once and for all. Rt Hon David Cameron, PM, Speech to Conservative Party Conference, September, Taking into account the criticisms voiced above, discuss the impact of the Human Rights Act 1998 on the principle of parliamentary sovereignty. This essay will focus on challenges to parliamentary sovereignty due to the Human Rights Act 1998 (HRA). It will argue that the HRA provides for dialogue between domestic courts and the European Court of Human Rights (ECtHR), allowing for flexibility in the Strasbourg court s judgments, which bind the UK in international law. Lastly it will be submitted that s.3 respects sovereignty as judges interpret legislation in a way which would not interfere with Parliament s law-making, and that s.4

2 reinforces sovereignty as incompatible statutes remain in force, contrasting EU law, which can override domestic legislation. Dicey defines parliamentary sovereignty as Parliament s right to make or unmake any law whatever; and, further, that no person or body recognised by the law of England [has] a right to override or set aside legislation of Parliament. 1 The United Kingdom, however, has been bound by the terms of the European Convention on Human Rights (ECHR) since its inception in the 1950s. According to Article 46, the UK has undertake[n] to abide by the final judgment of the [ECtHR]. 2 This indicates that the ECHR affected UK law before the HRA, as Parliament was obligated to legislate according to it, less it would have to pay damages to the parties whose rights they breached and to alter legislation to conform with the treaty. This is exemplified in Malone 3, where the claimant, failing in domestic courts due to Convention rights not being incorporated into UK law, took his claim to Strasbourg 4, where the court ruled that his Article 6 rights had been violated, thus causing Parliament to enact legislation 5 remedying the issue. No domestic law bound Parliament to do so, but it was restricted by the UK s international obligations. It can be argued that the HRA remedies the issue of the ECtHR influencing Parliament, as the Convention s incorporation in UK law enables Strasbourg to benefit from UK jurisprudence. In Horncastle 6, the court declined following ECtHR jurisprudence, finding that when the Strasbourg court does not sufficiently appreciate 1 A.V.Dicey, Introduction to the Study of the Law of the Constitution, Chapter I. The Nature of Parliamentary Sovereignty (1885) 2 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 46 3 Malone v Metropolitan Police Commissioner [1979] Ch Malone v United Kingdom (1985) 7 EHRR 14 5 Interception of Communications Act R. v Horncastle [2009] UKSC 14

3 particular aspects of the UK s domestic process, the domestic court can, with reasoned arguments, stray from Strasbourg s jurisprudence. This created dialogue between domestic and Strasbourg courts, giving Strasbourg the opportunity to reconsider its decision. 7 In Al-Khawaja, 8 the ECtHR considered the Supreme Court s reasoning in Horncastle and ruled for the UK, exemplifying how this judicial dialogue can protect parliamentary sovereignty. As such, David Cameron s concern that the HRA will effectuate prisoners voting rights may be alleviated: the HRA enables Strasbourg to consider reasoning of domestic courts on the issue and modify its position over time to accommodate the UK s domestic process. Parliament in enacting the HRA has not given the ECtHR further influence over it, but it has given domestic courts a duty to consider its jurisprudence 9, and more influence through s.3 and s.4 of the Act. Section 3 imposes a duty on courts to interpret legislation so that it conforms to Convention rights. It should be noted that this potential infringement to parliamentary sovereignty is not a novel concept. As seen in Brind 10, before the HRA s enactment, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention 11. The core difference that the HRA brought about is the obligation to interpret it in that manner, even in the absence of ambiguous language 12. Parliamentary sovereignty is nevertheless preserved, as it is assumed 7 Ibid. [11] (Lord Phillips) 8 Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 9 Human Rights Act 1998, s 2(1) 10 R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C Ibid. (HL) 747 (Lord Bridge) 12 R v A (No 2) [2001] UKHL 25 [44] (Lord Steyn)

4 that due to treaty obligations, Parliament intends to legislate according to the ECHR, unless explicitly stating otherwise. Thus courts use s.3 to ensure domestic law is read so that it wouldn't infringe on Convention rights, giving claimants a more direct remedy: domestic courts can henceforth enforce their rights. Furthermore, judges exercise restraint to avoid infringing on Parliament s sovereignty, qualifying this interpretive power. In Re S 13, the court clearly differentiated between an interpretation and an amendment: use of s.3 was deemed inappropriate, as it went beyond interpretation and propounded a new procedure 14 courts must not introduce new procedures to fill in what Acts do not say, and must identify a particular statutory provision or provisions whose interpretation leads to that result. 15 In Bellinger 16, the court did not use s.3 to interpret female to include transsexual female in s.11(c) of the Matrimonial Causes Act 1973, as it was so interlinked to reform in other areas of the law 17 for which there should be a clear, coherent policy 18 rather than the piecemeal approach inherent in judicial rectification. Furthermore, the court was aware of primary legislation put forth addressing this issue 19, and thus wanted to avoid interfering with Parliament s legislative process. In Anderson 20, interpretation would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretive process sanctioned by s.3 of the 1998 Act 21. Kavanagh further suggests 13 Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL Lord Irvine of Lairg, The Impact of the Human Rights Act: Parliament, the Courts and the Executive [2003] PL 308, Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10 [41] (Lord Nicholls) 16 Bellinger v Bellinger [2003] UKHL Aileen Kavanagh, Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach [2004] PL 537, Bellinger v Bellinger [2003] UKHL 21 [45] (Lord Nicholls) 19 Ibid. [26] (Lord Nicholls) 20 R. (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL Ibid. [30] (Lord Bingham)

5 that this case confirms the qualification in Bellinger of avoiding interference with Parliament s legislative process, as recent ECtHR rulings 22 had declared that section to violate Article 6, therefore Parliament was bound to change the provision 23. These qualifications thus ensure that the judiciary does not infringe on Parliament s law-making capabilities, preserving its sovereignty, as aiding it in fulfilling its obligation to enact legislation adhering to the ECHR would not contradict Parliament s intention. In cases where a s.3 interpretation would thus be unavailable, courts resort to issuing a declaration of incompatibility under s.4. However, parliamentary sovereignty was still intrinsic to the Act, as declarations of incompatibility [do] not affect the validity, continuing operation or enforcement of the provision in respect of which it is given 24, preserving the notion of parliamentary sovereignty, as such a declaration simply identifies the incompatibility, leaving the decision-making to Parliament. However, as the Belmarsh 25 case shows, despite not being legally binding, such declarations subject parliament to powerful political pressure and public scrutiny. Consequently, that case was the impetus for the enactment of the Prevention of Terrorism Act 2005 aiming to resolve the incompatibility, indicating that courts, in declaring a statute to be incompatible, indirectly have a substantial influence over Parliament. As opposed to a s.3 interpretation, however, declarations under s.4 still leave the actual legislation to the legislature it is Parliament who decides how the incompatibility is addressed, bolstering the concept of parliamentary sovereignty. 22 Stafford v United Kingdom (2002) 35 E.H.R.R. 1121; Benjamin and Wilson v United Kingdom (2002) 36 E.H.R.R Aileen Kavanagh, Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach [2004] PL 537, Human Rights Act 1998, s 4(6) 25 A and others v Secretary of State for the Home Department [2004] UKHL 56

6 This, however, is a stark contrast to other threats to parliamentary sovereignty through incorporation of international treaties into UK law, such as the European Communities Act 1972 (ECA). Whereas the HRA selects which ECHR Articles to import into domestic law, and has UK courts only consider ECtHR jurisprudence, the ECA indiscriminately imports all European Union law. Furthermore, whereas a declaration of incompatibility does not, legally, affect the statute s validity, statutes incompatible with EU law can be disapplied, as seen in Factortame 26. As the Merchant Shipping Act 1988 was disapplied by the 1972 Act, Parliament of 1972 had succeeded in binding the Parliament of 1988 and restricting its sovereignty 27. It therefore seems that Factortame confirms how with the ECA, Parliament has bound its successors successfully, and which is nothing if not revolutionary 28 if such a revolution did take place, the HRA s delegation of authority to Strasbourg should not be seen as a usurpation of parliamentary sovereignty, especially as the HRA is constructed so as to leave the final say on contradictory legislation with Parliament. Furthermore, Barber argues parliamentary sovereignty was abandoned after Factortame 29. If that is true, Parliament would have proven to be a slave to treaty obligations well before the HRA s enactment. In conclusion, recalling the Dicey s orthodox view, Parliament can unmake any law even Barber acknowledges that Parliament could repeal the European Communities Act or the Human Rights Act if it wished 30. This is especially true for the HRA because s.6(3) excludes the Houses of Parliament from the definition of public bodies for whom it is unlawful to act contrary to the ECHR. This reinforces the view 26 R. v. Secretary of State for Transport, ex p. Factortame Ltd (No. 2) [1991] 1 A.C HWR Wade, Sovereignty: Revolution or Evolution? (1996) 112 LQR Ibid., Nick Barber, The Afterlife of Parliamentary Sovereignty (2011) 9(1) IJCL Ibid., 154

7 that the HRA was constructed with the principle of parliamentary sovereignty at heart. Even if the HRA were to be repealed, as David Cameron wishes, the law has evolved alongside the ECHR since the 1950s, and EU law provides for the protection of rights, holding the ECHR as having special significance 31. However, what the HRA does is provide a means for engaging in judicial dialogue with the ECtHR so that it can accommodate for domestic views, as well as provide, through ss. 3 and 4, for a means to expedite the process of conforming domestic legislation to the ECHR, which Parliament was obligated to do, with the courts help. Irvine, prompting us to consider courts decisions on controversial matters in the past, reminds us that this judicial assistance is only a difference of degree, not of kind 32. It can therefore be said that the HRA is beneficial to parliamentary sovereignty, as it helps further Parliament s intentions and allows for UK influence in Strasbourg. Bibliography: CASES A and others v Secretary of State for the Home Department [2004] UKHL 56 Al-Khawaja and Tahery v United Kingdom (2012) 54 EHRR 23 Bellinger v Bellinger [2003] UKHL 21 Benjamin and Wilson v United Kingdom (2002) 36 E.H.R.R. 1. Malone v Metropolitan Police Commissioner [1979] Ch Nold v. Commission, Case 4/73 [1974] ECR Lord Irvine of Lairg, The Impact of the Human Rights Act: Parliament, the Courts and the Executive [2003] PL 308, 312

8 Malone v United Kingdom (1985) 7 EHRR 14 Nold v. Commission, Case 4/73 [1974] ECR 491 Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10 R. (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46 R. v A (No 2) [2001] UKHL 25 [44] (Lord Steyn) R. v Horncastle [2009] UKSC 14 R. v Secretary of State for the Home Department Ex p. Brind [1991] 1 A.C. 696 R. v Secretary of State for Transport, ex p. Factortame Ltd (No. 2) [1991] 1 A.C. 603 Stafford v United Kingdom (2002) 35 E.H.R.R LEGISLATION Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) European Communities Act 1972 Human Rights Act 1998 Interception of Communications Act 1985 Matrimonial Causes Act 1973 Prevention of Terrorism Act 2005 JOURNAL ARTICLES TRS Allan, Parliament s Will and the Justice of the Common Law: The Human Rights Act in Constitutional Perspective (2006) 59 CLP 27

9 Nick Barber, The Afterlife of Parliamentary Sovereignty (2011) 9(1) IJCL 144 Vernon Bogdanor, Our New Constitution (2004) LQR 242 Lord Irvine of Lairg, The Impact of the Human Rights Act: Parliament, the Courts and the Executive [2003] PL 308 Aileen Kavanagh, Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach [2004] PL 537 HWR Wade, Sovereignty: Revolution or Evolution? (1996) 112 LQR 568 Lord Woolf C.J, Human Rights - Have the Public Benefited, The British Academy Thank-Offering to Britain Lecture, October 15, (Last accessed 10/12/2014) TEXTBOOKS M Elliot and R Thomas, Public Law (2nd, Oxford University Press, Oxford 2014) C Turpin and A Tomkins, British Government and the Constitution (7th, Cambridge University Press, Cambridge 2012) NEWSPAPER ARTICLES Maya Wolfe-Robinson and Owen Bowcott, Lord Irvine: human rights law developed on false premise, The Guardian (London, 14 December 2011) - (Last accessed 10/12/2014)