Human Rights Act 2000

Human Rights Act 2000

Technically the HRA 1998 is not entrenched it cannot realistically be perceived as a statute just like any other. Instead, its provisions are 'contributing to a framework' shaping the law and its ambiguities as and when they arise, ensuring strict adherence to convention rights and ultimately exhibiting the characteristics of the aforementioned 'yardstick' as it does in other signatory States.

As well as the statement of compatibility Sections 2 and 3 of the Act further indicate a special status. Section 2 requires British Courts to take into account the jurisprudence of the Strasbourg organs. Although decisions reached in Strasbourg are not meant to be binding (largely because of theory based on the margin of appreciation ) they should be read as persuasive authority. Techniques employed by the Strasbourg courts may also be adopted as, for example, has the purposive approach to statutory interpretation . This has a wide-ranging and varied effect on our legal system and has already offered the courts a great amount of expertise and different interpretative techniques on which to draw.

Conversely, if a piece of legislation is incompatible with the convention rights, this section requires a declaration that the Statement cannot be made but that the Government wishes the House to proceed with the Bill. The latter proposition suggests that technically the convention can be ignored although, as Lord Lester Comments 'it will be seldom, if ever, that Parliament will… intend to legislate in breach of convention rights'. At the very least, the requirement in Section 19, should ensure that all new legislation is justified with reference to the fundamental moral underpinnings contained in the convention. Such a process, it is felt, imposes a new 'transparency' to legislative intent which the Lord Chancellor praises as one of the 'main benefits produced by incorporation of the convention.'

Despite the above provisions, if compatibility is literally impossible, Section 4 of the Act, authorises the judiciary to make a 'declaration of incompatibility' in respect to both primary and subordinate legislation. By virtue of the qualification in Section 4(6) this declaration 'does not affect the validity or continuing operation' of the legislation in question. Instead it puts the Government on 'notice' and requires that either a remedial order is made (Section 10) to amend the legislation or, in theory any way, they ignore the declaration and risk sanctions by Europe. The fact that Government is not obliged to lay a resolution before Parliament is of concern and appears to be in contradiction with the doctrine of Parliamentary Sovereignty. Also (because of various public and political pressures) the Government is likely to make such an order on a declaration by the court. Therefore, the Court's power under Section 4 comes closer in practice to constitutional review than may at first appear.

Despite the above, the fact remains that, providing Parliament 'has spoken with sufficient certainty, in terms that exclude or contradict the Convention, the latter, under our present arrangements, has no place.' For, while the Act enables judicial scrutiny of ...