Power In The English Legal System Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Common Law Reasoning and Institutions

Essay Title: ‘ The Human Rights Act has revolutionised the way in which judges interpret statutes. ’

Student Number: 090485789

Candidate Number: 54206

The Human Rights Act 1998 came into force for almost twelve years and it was drafted in response to years of debate about whether the United Kingdom should introduce a bill of rights and if so, what kind. The Act protects human rights and civil liberties in the UK; therefore, the Act has brought rights home. However, it is necessary to consider whether its legal form serves the purpose for which the Act was enacted i.e. to create more efficient human rights culture. Therefore, to assess the impact of the Human Rights Act 1998 on Doctrine of Binding Precedent a number of question must be addressed such as the status of the decisions of the European Court of Human Rights (ECtHR), whether the new Act has remedied the deficiencies in the traditional English Legal System and created identifiable right based culture in UK and whether the Act significantly widened the power of the judges in the judicial law- making. 

Traditionally, judges enjoy the judicial law-making power in the English legal system, however, this power is said to be subservient position compared

to that of parliament as the parliamentary legislation is superior to that of a judge made law. It is to be noted that a judge can only respond to the situation which has arisen (cf parliament) and judge made law can be overruled by parliament. There is no doubt that on occasion judges make law. Nevertheless, their freedom is restricted by the supremacy of Parliament & by the rules of precedent and the rules of statutory interpretation. It is to be noted that ‘judicial precedent’ is dependent upon:

  * The identification of the principle of law stated in the courts’ judgment;

  * The court in which the previous case was decided; the courts are organized accorded to a hierarchical structure. Judges are bound by the decisions of the court above them in this hierarchy. This principle that courts follow judgments of courts above them is known as the doctrine of Stare decisis.

As far as, Human Rights Act is concerned, it is necessary to consider the relationship between ECtHR and domestic courts. Despite the fact that each court is bound to follow the decisions of a higher Court above it in the hierarchy, but there are two exceptions to this requirement. The first one is national court must follow the decisions of the European court of justice if it involves the European Union Law. The Second exception is that by virtue of HRA s.2 domestic courts are required to "take into account" Strasbourg

jurisprudence when considering a Convention right. 

Labour 1997 manifesto commitment to give some effect in domestic law to ECHR, so individuals could enforce rights in UK courts. However, HRA does not ‘incorporate’ the ECHR rather it defines most of the ECHR rights as ‘Convention rights’, then it gives Convention rights special status in UK law. S2 HRA provides that any court of tribunal dealing with Convention rights ‘must take into account’ the case law which has developed under the Convention (ie case law from ECtHR in Strasbourg). This does not mean courts must follow Strasbourg case law.   Moreover, as regards the interpretative obligation, S3 HRA provides that where it is possible both primary and secondary legislation should be read (interpreted) in a way to make the legislation compatible with Convention rights. However, where this is not possible, the legislation prevails, and is not invalidated. Thus parliamentary supremacy is preserved. The principle are now well established as a result of House of Lords cases such as R. v A (No.2), Re S (Children) (Care Order: Implementation of Care Plan) and Ghaidan v Goden-Mendoza. 

S.4 of HRA gives the higher courts the power to make a declaration of incompatibility if it is not possible to interpret legislation in a way compatible with Convention rights. This does not have any effect on the status of primary legislation, though it

can trigger a fast track amending procedure if Parliament wants; thus parliamentary supremacy is preserved, it will strike down secondary legislation.   S6 HRA provides that it is unlawful for a public authority to act in a way which is incompatible with Convention rights. Wadham has argued that the courts have a duty to develop the common law in line with Convention rights by virtue of s6 (3).

The language used in the s2 of Human Rights Act 1998 is "Take account of" which is not same as "follows", "give effect to" or "be bound by." Although the Parliament, could have used any of other formulations, but it used the language ‘take into account’ and the parliamentary debate on s.2 reveals that the language of that section was purposefully drafted to avoid the domestic courts from being bound by Strasbourg jurisprudence, instead it require them to take it into account of the decisions of the European Court of Human Rights. In R (Alconbury) v Secretary of State for the Environment,   Majority of Law Lords treated the decision of ECtHR as binding and (Lord Slynn) expressed his view as follows: "in the absence of any special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights." Therefore, It can argued that in order to enhance human rights in the UK   the parliament enacted the HRA with its aim and aspiration to allow the

courts to use the ECHR as a source of rights and freedoms so that they can interpret a bill of rights domestically.   

Whereas, the situation is much more complex where there is a conflict between the decisions of English Higher Court with the decision of the European Court of Human Rights. Unlike EU law, the national courts must follow the binding domestic precedent. The Issue arose in Leeds City Council v Price, the Court of Appeal followed the House Lord’s decision in Harrow LBC v Qazi and the decision in this case was incompatible with the later decision of the ECtHR in Connors v United Kingdom. However, the approach taken by the domestic courts in this sort of scenario is justified in the context of Convention itself as it provides for the doctrine of margin of appreciation. Under this doctrine, the Convention acknowledges that, in some cases, the national courts are in a better position to judge the situation in their country than an international court in Strasbourg.

A wide range of cases are illustrative on the bold approach taken by the domestic courts on Convention rights such as protections of civil liberties. It was held in Entick v Carrington that since it did not have a positive legal basis it was necessary in the public interest, a search warrant issued by the Secretary of State to confiscate Entick’s documents from his premises which could not be justified as being lawful.

There is a recent case on the protection of liberty; A v SSHD (no.2) under article 8 the right to privacy of   plaintiff (Malone) was ultimately protected by holding the act of telephone tapping to violate his right. The convention can also be used to help resolve, particularly in freedom of expression cases, therefore, Article 10 encouraged the H/L to decide, in Derbyshire Vs. The Times that the local authorities had no capacity to sue for libel. 

In Douglas V Hello, Venebles and Thompson case (2001) and Campbell case the court used the HRA to develop the common law. Judges have shown themselves capable of activism in the area of privacy in these cases. The Venebles and Thompson v Newsgroup Newspapers and Campbell case concerned the horizontal effect of the Act.   The decision of European Court of Human Rights is persuasive only in matters relating to Convention rights within the vertical dimension of the hierarchical structure of the UK court. As far as horizontal effect is concerned, it was held in Campbell case that the 1998 Act does not have direct horizontal effect but has indirect horizontal effect. In Campbell v MGM , the Mirror Newspaper owned by the MGM Ltd Company published story and pictures of Naomi Campbell, thereby Naomi’s Convention rights under Article 8 was breached. However, it was held by the court in this case that although the MGM Ltd has the freedom of expression

under Article 10, nevertheless, Naomi Campbell’s right under Article 8 (Right to privacy) took precedence over the right protected under Article 10.

From the above discussion, it appears that the HRA created more comprehensive rights for private and family life then the patchy and piecemeal one protected under various others names in domestic law.

Therefore, it can be said undoubtedly that the Human Rights Act 1998 has created a clearer and more identifiable human rights' culture in United Kingdom. The Act has widened the power of the judiciary in interpreting legislation compatible with the human rights norms, but to preserve the doctrine of Parliamentary sovereignty, judges play a limited role in judicial law making because judges have no power to nullify the primary legislation even if that legislation is not compatible with the fundamental human rights. Although there are few areas where judges have taken the bold approach and taken the decision in line with the Convention rights, but in fact, the courts' new powers under ss.3 and 4 of the Act is limited in the sense that the courts are only under a duty to consider whether such legislation is compatible with that of Convention rights or not. Precisely, the courts are under a duty to assess the necessity and proportionality of such provisions - and to issue declarations of incompatibility, by virtue of s.4 of the Act.   

In conclusion,

it appeared that the Human Rights Act has widened the power of the judges in the adjudicative process by "taking into account" Strasbourg jurisprudence when considering a Convention right.   The HRA provides judges the opportunity to rework in the existing judicial practice in line with Convention rights and the court can now apply more coherent and principled system of adjudicating on human rights dispute.   Unlike the position under European Community law,   s.2(1) does not enjoin the court to place any particular weight on Strasbourg cases, therefore, the English courts are not obliged to apply Strasbourg cases strictly as precedent. Therefore, the Act has not radically altered the courts' role as judges and they are still required to work within the hierarchic structure of the common law.