THE HUMAN RIGHTS ACT 1998

'The case law on s 6(3)(b) of the Human Rights Act 1998 shows that the courts have failed to implement Parliament's intention in relation to this provision. Discuss.

'The case law on s 6(3)(b) of the Human Rights Act 1998 shows that the courts have failed to implement Parliament's intention in relation to this provision. Discuss.

Introduction

The Human Rights Act 1998 (UK) (HR Act) represents the repatriation of European Convention of Human Rights 1950 (European Convention) to the UK. The HR Act incorporates most of the Articles of the European Convention into the domestic law of the UK, making the so-called Convention rights enforceable within the domestic law of the UK. The HR Act came into effect in October 2000. The HR Act is an attempt to preserve the sovereignty of parliament, yet allow some role for human rights concepts in the domestic law.

The HR Act primarily operates in two ways. Firstly, it imposes an interpretive obligation on the judiciary, requiring it to interpret legislation in a manner that is compatible with Convention rights wherever it is possible to do so. Where such interpretation is not possible, the judiciary is empowered to make declarations of legislative incompatibility. Such declarations do not affect the validity of the legislation. Rather, they act as an alarm bell (of sorts), notifying the Executive and Parliament of the violation, and shifting the onus to remedy the defect on them. Secondly, it makes it unlawful for public authorities to act incompatibly with Convention rights.

Firstly, the HR Act is hailed as a compromise between the venerated notion of parliamentary sovereignty and the promotion and protection of human rights. Parliamentary sovereignty has been preserved via the idiosyncratic approach to the extent of judicial enforcement. To be sure, the judiciary has a very broad power of interpretation under the HR Act; however, it is not empowered to invalidate legislation. This ensures that the elected arms of government are the final arbiters of the direction of society and the protection afforded to the vulnerable and minority groups within society. The success of the compromise between parliamentary sovereignty and human rights depends on numerous factors, including: the perceived legitimacy of the new judicial interpretative task under the HR Act; acceptance that the HR Act changes the traditional notions of parliamentary sovereignty; and the threat to the protection and promotion of human rights posed by an Executive or legislature that fail to utilise their response mechanisms.

The other, and related, underlying theme of the HR Act is the creation of an inter-institutional dialogue on human rights (Klug 2002). More modern day domestic rights instruments recognise that the judiciary has a vital a role in the promotion and protection of human rights, but that this should not be to the exclusion of the other arms of government. Indeed, the models recognise that the legislature, Executive and judiciary have equally valid views on democracy and its limits. Thus, constitutional structures that encourage and respect an inter-institutional exchange about rights are ...