The Human Rights Act Has Revolutionised Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

"The Human Rights Act has revolutionised the way in which judges interpret statutes."

Student Number:

120189618

Candidate Number:

110563

Ever since the coming into force of Human Rights Act 1998 (HRA 1998), it seems like judges had been given more power when it comes to the interpretation of Acts of Parliament that affect the human rights. There has been an increased tension that the judges might upset their constitutional role, and that judiciary law-making concept might upset the doctrine of separation of power. The doctrine of separation power is a fundamental constitutional importance to avoid the abuse of power of institutions, especially in the absence of written constitution in UK.

The Human Rights Act 1998 was enacted on the 9th November 1998 but only came into force in United Kingdom on 2nd October 2000. The purpose of the this Act is to make most rights protected under the European Convention on Human Rights (ECHR) enforceable in UK’s domestic court and also to give further effect in UK Law.

Prior to the HRA 1998, convention rights were only a persuasive authority in which the courts were not bound to give effect to the rights. The ECHR only operates in domestic law as an aid to construe statute, there was a compliance presumption that parliament do not intend to legislate against convention rights. In Waddington v Miah [1] , the rule was that when interpreting ambiguous provision of statute, the parliament is presumed not to intend to enact legislation which are contrary to international obligations, which includes human right conventions. But the limitation to this presumption was also set out in Ex Parte Brind [2] , in which the compliance presumption does not include provision of statutes which are not ambiguous. [3] Therefore, the interpretation of convention rights was limited to only ambiguous language in statute.

In S.3(1) of HRA 1998 [4] , it states that "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights". HRA 1998 is rather broad and not as detailed as compared to other statutes, which seems likely to leave a wide area of discretion to the judges. S.3 may also appear to limit the powers of the courts as the statutes can only be interpreted in a manner compatible with Convention rights in "so far as possible to do so". However, in practice, Parliament has given the judiciary carte blanche to determine when it is impossible to interpret statutes in a manner compatible with Convention rights. The express words of section 3(1) are so vague as to provide no clear outline of the limits of possibility. [5] 

In Sir Rupert Cross’s book of Statutory Interpretation [6] , he observed that there is three basic rules of UK practice of statutory interpretation. Namely, the literal, golden and mischief rule. These three rules of statutory interpretation were well established in a time before HRA 1998. Among these three, the literal rule is the most commonly used in the English legal system, where the judge must give effect to the grammatical and ordinary meaning of the statute, and apply the law as it is. Where the language of statute is capable of more than one meaning, the judges will look into the law, statute and intention of Parliament and interpret accordingly. As mentioned earlier, the vagueness of HRA 1998 has no doubt leave a lot of room for debate on judiciary law making. However, in the case of HRA, the courts have departed from the traditional rules of statutory interpretation. Courts potentially ignore what Parliament intended in order to reconcile statute with Convention rights.

The HRA 1998 incorporates a large part of the ECHR into English law. It is a 'living document' which has to be interpreted in the light of current conditions as to reflect societal changes. The method adopted in interpreting HRA 1998 is the purposive approach, which seeks to looks at the purpose of the Act. It has the highest degree of similarity with mischief rule. Purposive interpretation is also sometimes known as the modern mischief rule.

In Jan Van Zyl Smit’s article [7] , he talks about the limits of purposive interpretation of S.3 of the HRA 1998. According to him, S.3 poses challenges to the respective role of both judiciary and legislation. The first challenge is that the methods courts use to interpret Acts in order to make it compatible with convention right, might move away from what the parliament originally intended the Act to be. The second challenge is related to the first, which is of judicial law making. [8] In order to ‘as far as possible’ make an act compatible with the convention rights, the courts, when interpreting an Act, tends to read ‘down’, ‘in’ or ‘out of the language of statute, thereby it might alter the original meaning of the statute.

A prime example to illustrate this scenario is the case of R v A (No.2) [9] , in which the defendant was accused of rape and his defence was that the victim had consented to sex. The wordings of S.41 of the Youth Justice and Criminal Evidence Act 1999 prevent the defendant from pointing out that there was a previous consenting relationship in order to protect the victim’s dignity. This would also amount to a breach of Article 6 of ECHR, by denying the defendant’s right to fair trial. Therefore, the court held that S.3(1) of HRA 1998 allows such evidence to be adduced if, and only if, its exclusion would result an unfair trial to the defendant. The court used the ‘reading in’ method to interpret that S.41 of the Youth Justice and Criminal Evidence Act 1999 as only intended if it did not violate the person’s right. Lord Steyn also added that S.3(1) of HRA 1998 applies even if there is no ambiguity in the language of statute.

As Emerson quoted, there has been "a major shift in power from Parliament to judges". They will, in effect, be able to rewrite sections of Acts by reading into them words that are not there." This will be in breach of the doctrine of separation of power, where according the Dicey, the Parliament is the supreme law maker of UK.

In order to combat these issues, Jan Van Zyl Smit suggested two ideas. One of the ideas is to respect the fundamental features of the statute [10] . This is to make sure the purpose of the Act still remain intact even after applying S.3 of HRA 1998, and also the give effect to the Parliament’s will as accurate as possible. In Re S, the local authorities appeal against a decision of the Court of Appeal that the court had the power to identify essential milestones in a care plan and to require local authorities to take action if they were not achieved within a certain time. The issue before the House was whether such a "starring system" could be justified as a legitimate interpretation of the Children Act 1989 pursuant to the S.3 of the Human Rights Act 1998. The House of Lords in that case overturned a S.3 interpretation of the Children Act 1989 given by the Court of Appeal. The House of Lords found that the Court of Appeal’s decision was beyond the boundaries of interpretation, as the 1989 Act contained no provision which could be interpreted so as to confer the supervisory function of the court. The Act contains restricted judicial supervision of care orders and granted exclusive responsibility to the local authority to supervise most aspects of a care order. The House of Lords held that these restrictions on judicial intervention constituted a ‘fundamental feature’ of the Children Act.

The judges should also avoid issue that calls for legislative deliberation. [11] There are limits to what judges are capable of deciding, and what they are not capable of. What judges are not capable of deciding should be left to the Parliament to deal with; judicial deference. A well illustrated case is Bellinger v Bellinger [12] . The appellant, male at birth, underwent gender reassignment surgery to become a woman. He then went through a wedding ceremony with a man. The marriage was declared invalid under S.11(C) of the Matrimonial Cause Act 1973, as the parties have to be a male and a female. The appellant sought a declaration that S.11(c) of the Act is incompatible with the HRA 1998. The court dismissed the appeal, but declares it incompatible. It was held that the issue on recognition of gender reassignment for the purposes of marriage was ill suited for determination in the courts and was a matter more suitable for Parliament to decide. The court was reluctant to decide as they are afraid they might set a precedent that would decide a whole host of other issues, including perhaps the question of same sex marriage, and more certainly the status of transsexuals in legal areas other than marriage.

The power given by the Parliament to the judiciary under the HRA 1998 should not be viewed as a judicial attempt to usurp the will of Parliament. [13] Instead it was suggested that the intention of the judiciary was to give checks and balances on the constitution. Since UK’s constitution is unwritten in nature, and that Parliament is sovereign, it is essential for the courts to keep an eye on the legislative to make sure that the law they had enacted does not infringe the fundamental rights of human, and thus upholding the rule of law.

It is inaccurate to think that the HRA 1998 has revolutionised the way in which judges interpret statutes. What judges did was according to their constitutional role, which is to uphold the human rights and protect the people, but also at the same time interpret the statute in accordance with the power conferred under S.3 of HRA. If the judges are not able to interpret the provision of the statute compatible the human rights, they are given the power under S.4 of HRA 1998 to declare incapability. [14] 

The judiciary, when interpreting HRA, adopts the European Jurisprudence concept of proportionality. It assesses the balance between the supremacy of the Parliament and also the need to preserve the fundamental rights; limitation of the right which is necessary in a democratic society. It strikes to balance the individual rights and Parliamentary sovereignty. Human rights give individuals their right to go against the government and at the same time, ensure that the State governs according to the rule, and not to violate the rule of law. The judiciary as the neutral party between these two, act as a guarantor of both legality and individuals’ rights.

The HRA 1998 was not enacted to grant opportunities for the judiciary to go against Parliament Sovereignty, but it acts as a check and balance. Similarly, it is said that policy making issue might be best suited for the legislative and executive, it is also possible to argue that when it comes to developing human rights, judges are the best candidate for it. In a positive way, it can be said that interpretative provision of HRA 1998 effectively make the judges the legislators of Human Rights.