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Australian Journal of Human Rights |
The Human Rights Act 1998 (UK):
the preservation of parliamentary supremacy in the context of rights protection
Julie Debeljak*
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,1 making the so-called Convention rights enforceable within the domestic law of the UK.2 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. This paper will focus on the former.
This paper is intended as an introduction to the operation and interrelation of the interpretative obligations of the judiciary, the declaration of incompatibility mechanism, and the parliamentary and executive response mechanisms. These aspects will be discussed and assessed against the underlying aims and themes of the HR Act, with conclusions drawn for Australian consideration. This critique is not intended as a slight on the model as such; in fact, the model is a step forward in the search for domestic rights protection and enforcement. Rather, discussion and criticism is intended to highlight the nuances of the model to ensure it functions as intended and to its optimum.
There are two main themes to be explored. Firstly, the HR Act is hailed as a compromise between the venerated notion of parliamentary sovereignty3 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 preferred to both legislative and judicial monopolies over rights.4 The HR Act establishes an inter-institutional dialogue between each arm of government, thereby acknowledging the unique institutional perspective to be offered by each arm. The expert contribution of each institution of government to the debate should not only improve the quality of the human rights guarantees, but ownership of the issue should ensure that human rights concerns become central to the decisions of each institution. Such ‘mainstreaming’ of human rights is important because ‘a political community [cannot] flourish, or its citizens develop and improve their own sense of moral responsibility, unless they participate in the community’s deepest and most important decisions about justice’ (Dworkin 1996: 332, 342; Dworkin 1994: 20). The success of any dialogue model for rights protection depends on the willingness of each institution to perform its tasks professionally and without fear or favour, and to allow the other arms to so do. This is particularly true of the judiciary under the HR Act. From a rights perspective, much will turn on the amount of deference the judiciary is willing to accord to the elected arms of government. From a dialogue perspective, much depends on the respect extended to judicial interpretations not only by the elected arms of government, but also the citizenry.
In the end, the risks associated with the HR Act seem to lie with the amount of emphasis placed on parliamentary sovereignty. An over-obsession with parliamentary sovereignty — particularly as traditionally understood in the UK — will distort the institutional dialogue as designed by the HR Act, weaken the human rights guarantees under the HR Act, and ultimately undermine the Blair Labour Government’s (the Government) stated aim to bring human rights home.
In order to facilitate analysis of the HR Act, the motivations for incorporation of the European Convention should be briefly outlined. Many factors influenced the decision to incorporate the European Convention into British domestic law. The Government has three distinct reasons. Firstly, the Government wanted to repatriate the Convention rights that Britain had championed after the Second World War. The adjudication and enforcement of the European Convention rights by Strasbourg organs, without significant input into the jurisprudence by British judges, led to the growing perception that the Convention rights were no longer considered to be British rights (Bingham 2000: 137).5 The Government wanted to allow British judges ‘to make a distinctively British contribution to the development of the jurisprudence of human rights in Europe’ (Human Rights White Paper 1997: 1.14).6
Secondly, the efficacy of enforcing European Convention rights in the European Court of Human Rights (European Court) was diminishing: on average, enforcing a right in the European Court was taking five years, at a cost of GBP 30,000 (Human Rights White Paper 1997: 1.14). Thus, incorporation was designed to improve the time and cost of asserting rights.
Thirdly, and on a more magnanimous note, the Government admitted that the British approach to human rights ‘ha[d] not stood the test of time’ (Human Rights White Paper 1997: 1.15).7 Indisputable evidence of this is the frequency with which the Strasbourg organs found the UK in violation of Convention rights. According to the Government, ‘[t]he most obvious proof of this lies in the number of cases in which the European Commission and Court have found that there have been violations of the Convention rights in the UK’ (Human Rights White Paper 1997: 1.16). Lord Lester and Pannick argue that ‘[t]here is hardly an area of state regulation untouched by standards which have emerged from the application of Convention provisions to situations presented by individual applicants’ (Lester and Pannick 2000: 1.30). In short, the aim is to ‘make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home’ (Human Rights White Paper 1997: 1.19)
Interpretative obligations under the Human Rights Act 1998 (UK)
There are two aspects to the interpretative obligation under the HR Act. The first relates to the role of the jurisprudence of the Strasbourg organs under the European Convention under s 2 of the HR Act. The most relevant Strasbourg organ for current purposes is the European Court.8 This interpretative obligation raises concerns pertaining to the efficacy of rights, and the balance between parliamentary sovereignty and achieving a true inter-institutional debate between all arms of government, both arising in the context of judicial deference. The second aspect of the HR Act is the interpretative obligation vis à vis domestic laws under s 3. This obligation raises concerns about the need to recognise the changed role of the judiciary under the HR Act, to critically assess the inevitable criticism this new role will create, and to ensure the judiciary is heard in the inter-institutional human rights dialogue created under the HR Act.
Section 2 of the HR Act states that a court or tribunal determining a question which has arisen in connection with a Convention right, must take into account the jurisprudence of the Strasbourg organs so far as, in the opinion of the court or tribunal, it is relevant to the proceedings. The words in parenthesis demonstrate that ‘the judgments are relevant, not compelling, aids to interpretation’ (Beloff 1999: 33). This obligation adheres regardless of the date that the judgment, decision, or opinion was handed down.
Given this obligation, it is important to understand the approach of the Strasbourg organs to interpretation. The Strasbourg organs interpret the European Convention purposively. Convention rights are not to be given an originalist interpretation. The fundamental purposes of the European Convention are found in its Preamble. They are to promote and protect effective political democracy and to understand and observe human rights.9 According to European Court jurisprudence, an effective political democracy requires the protection and promotion of ‘the ideals and values of a democratic society’ (Kjeldsen v Denmark), the features of which include ‘pluralism, tolerance and broadmindedness’ (Handyside v UK at para 34; Dudgeon v UK at para 53) and the adherence to the rule of law (Golder v United Kingdom at para 34; Klass v Germany at para 55). This was articulated in the case of Young, James and Webster v UK: ‘... democracy does not simply mean that the views of a majority must always prevail; a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position’ (at para 63).
Moreover, the European Convention is considered a ‘living instrument which ... must be interpreted in the light of present-day conditions’ (Tyrer v UK at para 31). The European Convention guarantees rights that are practical and effective, rather than those that are theoretical and illusory (Marckx v Belgium at para 31; Artico v Italy at para 33; Soering v UK at para 87). Accordingly, any interference with the exercise of Convention rights cannot negate the very existence of the right or remove its effectiveness (Mathieu-Mohint v at para. 52; Ashingdane v UK at para 57; Winterwerp v Netherlands at para. 60). Also, the Convention is concerned with an individual’s substantive position, rather than their formal position, thus encouraging the courts to look behind the formal rules and to consider the indirect and practical effects of formal rules (Adolf v Austria at para 30; Duinhoff v Netherlands at para 34).
Under the European Convention, not all rights are absolute. Certain responsibilities and competing interests may limit rights. There are three categories of rights. The first category is absolute rights, such as the prohibition on torture and the prohibition on slavery, and the right to be free from punishment without law. Such rights cannot be derogated from and no circumstance justifies a limitation on such rights. The second category is qualified rights, which are rights that are guaranteed subject to the detailed curtailment of their application, such as the right to life, the right to liberty and security, and the right to a fair trial.10
The third category, referred to as limited rights, consists of the rights and freedoms contained in arts 8 to 11. The rights in these Articles are subject to internal limitations.11 The precise terms and justifications for the internal limits of each Article differ,12 but the European Court has adopted the same technique when considering the validity of the limitations. The European Court will first ask whether the complaint falls within the scope of the right. If the right is engaged, the European Court then considers the validity of any limitation. An internal limit is valid if it is: (a) prescribed by law, (b) intended to achieve a legitimate objective, and (c) necessary in a democratic society.13
To be prescribed by law, the interference with the right must be governed by an ascertainable legal regime. This will be satisfied if the law has a basis in domestic law (Silver v UK at para 86), and the law itself is adequately accessible and is sufficiently clear such that a citizen can adjust their conduct.14 The common law may be of sufficient precision for this purpose, statutory law or regulation not being essential (Sunday Times v UK at para 49).
The legitimate objectives that can justify a limitation are set out in the arts 8 to 11 themselves.15 The aims include matters such as the protection of the national interest, the protection of order, health and morals, the prevention of disorder and crime, the protection of the disclosure of information received in confidence, the protection of the reputation of others, and the protection of the rights and freedoms of others. The respondent State need only prove that one of the aims behind the interference is legitimate, a task that is not too demanding:
It is not difficult for a country facing an allegation of the breach of human rights to find a reason relevant to any case. The Strasbourg authorities have had little difficulty in assessing allegations made by applicants that the legitimate aim identified by the respondent was not the ‘real’ aim of the restriction. (Wadham and Mountfield 1999: 13)
The question of whether interference with a right is ‘necessary in a democratic society’ is twofold. Firstly, the term ‘necessary’ suggests the requirement of a ‘pressing social need’ for the interference (Sunday Times v UK at para 59; Handyside v UK at para 48; Goodwin v UK at para 40). The second element is proportionality.16 A legitimate aim will not suffice if the interference is excessive in the circumstances: ‘inherent in the whole of the Convention is a search for the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights’ (Soering v UK at para 89). The proportionality test causes the most concern within democratic polities, with judges having to define ‘democracy’ and assess what is ‘necessary’ for its fulfilment.
The margin of appreciation plays a significant role in the enforcement of the European Convention, especially in assessing whether a limitation is justified. The margin of appreciation recognises the principle of subsidiarity, that is, that the European Convention machinery is subsidiary to national systems of safeguarding rights. In particular, subsidiarity recognises that national authorities are better placed to balance one fundamental right against another or against a public policy, ensuring that the political and cultural traditions of Member States are respected (Handyside v UK at para 48).17 It also recognises that the national trial judge is better placed to assess the facts and evidence of each complaint presented to them in the first instance than is the European Court.
Let us consider the contours of s 2 in the context of the jurisprudential techniques utilised by the European Court. Two issues must be addressed. The first issue is whether, as the wording of s 2 clearly acknowledges, there will be a divergence between the European and British interpretations of the Convention rights. The second, and related, issue is how the margin of appreciation will be utilitised in the domestic setting.
As the wording of s 2 recognises, there may be occasions where it is inappropriate for the British courts to apply the jurisprudence of the Strasbourg organs. Section 2 requires the British courts to ‘take into account’ European Court jurisprudence only ‘so far as, in the opinion of the court’ it ought. Given that the European Convention is a living document whose interpretation develops and changes over time, European Court judgments containing sentiments and pronouncements that are unsuitable for, or not adaptable to, current times may be inappropriate. As the Lord Chancellor warned, the Act ‘would allow our courts to use their common sense in applying the European Court’s judgment to such a case’ (Irvine 1998: col 1270). Many commentators go further in suggesting that the British courts should not be considered bound by Strasbourg jurisprudence. Some advocate that the quality of the jurisprudence of the European Court may be questionable,18 while others consider the tendency of the European Court to accept the lowest common denominator as to the values underlying the European Convention to be unfortunate.19
In a broad sense, the British judiciary has indicated that Convention rights will be construed in a manner consistent to the approach of the Strasbourg organs. In R v Togher, the Court of Appeal suggested that it is undesirable to have a divergence between the approaches of the European Court and the British courts.20 In this spirit, in the Kebilene case Lord Hope indicated ‘that instruments of this nature call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to’ and ‘that a generous and purposive construction is to be given to that part of the Constitution which protects and entrenches fundamental rights and freedoms ...’ (Lord Wilberforce in Minister of Home Affairs v Fisher 1980 at 319; Lord Diplock in The Gambia v Momodou Jobe 1984 at 700).
In a more specific sense, however, the Court of Appeal in R v Togher did acknowledge as inevitable that differences between European and British jurisprudence may arise under British legislation. This conforms to the wording of s 2. It also corresponds to one of the motivational forces behind incorporation of the HR Act: allowing the British judges to make a distinct contribution to human rights jurisprudence (R v Togher). Moreover, it encapsulates the underlying concern of maintaining parliamentary sovereignty.
Of interest, however, is how the European Court will deal with such divergence when it arises. The right to petition the European Court is retained under the HR Act (Clayton E Tomlinson: para 23.01). If the domestic courts diverge from European Court jurisprudence by undercutting rights in favour of parliamentary sovereignty, the European Court will have two choices. It could extend its margin of appreciation in favour of the domestic jurisprudence, elevating parliamentary sovereignty above rights protection. Alternatively, it may find the UK in violation of its Conventions obligations. In this instance, the UK is free to choose how it rectifies the violation, but is under a positive obligation to rectify.21 Thus, in both situations, parliamentary sovereignty prevails, leaving rights and the dialogue theory vulnerable.
The concept of the margin of appreciation will also inevitably result in divergent jurisprudence. The margin of appreciation has a distinct role in an international setting, which is arguably irrelevant to a national setting. The European Convention is a regional human rights regime that is subsidiary to national legal regimes. The European Court had to develop the margin of appreciation to deal with subsidiarity, thereby providing national bodies a measure of flexibility in their application of Convention rights. The European Court also needed the capacity to account for local political, social, cultural and philosophical traditions. For instance, flexibility in application of the Convention rights is considered acceptable when national security and public morals are involved, and where the law or consensus of the contracting parties varies.
The justifications for the margin of appreciation do not exist at the domestic level. In a domestic setting, judges are better equipped to assess claims to national security and public morals, and are better positioned to assess local political, social, cultural and philosophical traditions. The consensus issues relating to the numerous Contracting Parties do not arise. Moreover, there are judicial tools within the domestic setting for situations where deference to the elected arms of government is necessary. Deference can be shown via justiciability concepts and standing requirements. Under the HR Act, the Executive and the Parliament can also trigger deferential attitudes via s 19(1) statements of incompatibility and via clear legislative language (discussed below). Accordingly, all European Court jurisprudence allowing for a margin of appreciation must be reassessed by the British courts, leaving great scope for divergence in the jurisprudence of British courts and the European Court (Lester and Mountfield 2000: 19; Singh et al 1999: 15).
The House of Lords recognised this in the case of Kebilene.22 Lord Hope recognised that the margin of appreciation ‘is not available to the national courts when they are considering Convention issues arising within their own countries’ (Kebilene at 993–994). However, his Lordship acknowledged that the fundamental principles guaranteed by the HR Act will involve difficult ‘questions of balance between competing interests and issues of proportionality’ (Kebilene at 994). To deal with this, Lord Hope articulated a deference test:
In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention ... [T]he area in which these choices may arise is conveniently and appropriately described as the ‘discretionary area of judgment’(Kebilene at 994).
The need for deference will be more readily identifiable in two situations. The first is where Convention rights are qualified or limited and thus require a balance to be struck, as opposed to where the Convention rights are absolute. The second situation is where Convention rights ‘involve questions of social or economic policy, less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection’ (Kebilene at 994). This discretionary area of judgment may extend to unqualified rights, especially given the European Court jurisprudence which suggests ‘that due account should be taken of the special nature of terrorist crime and the threat which it poses to a democratic society’ (Kebilene at 994).
In the course of his judgment, Lord Hope referred, with approval, to the writings of Lord Lester and Mr Pannick (Lester and Pannick 2000: 3.21; Pannick 1998: 545). Guidance as to the ‘discretionary area of judgment’ can thus be gleaned from their writings. Pannick justifies judicial deference in the area of economic and social policy along the usual line that judges are not experts in this area. Rather, economic and social policy should be left to the elected arms of government, ‘who have at their disposal the necessary institutional resources to enable them to compile and assess social science evidence, to mediate between competing social interests and to reach out and protect vulnerable groups’ (Libman v Quebec at 289 in Pannick 1998: 550). In contrast, rights of high constitutional importance, which thus call for little judicial deference, include freedom of expression, access to the courts and the protection of intimate matters of private life. Pannick also indicates that the courts are especially well placed to adjudicate upon criminal matters, such that strict judicial scrutiny should be applied.
This approach to the margin of appreciation is welcome. However, the replacement test of a ‘discretionary area of judgment’ may prove problematic. First, the discretionary area of judgment may become the margin of appreciation in another guise. In fact, a number of subsequent judgments have used rather suspect language when describing the area of discretionary judgment. In deciding the compatibility of legislation that renders prisoners ineligible to vote, the District Court conferred a ‘margin of appreciation’ extended to the parliament (Pearson v Home Department in The Times 17 Apr 2001; in Public Law 2001; at 605).23 In the area of immigration, the judiciary has indicated that a ‘margin of discretion’ is available to the lawmakers (International Transport v Home Department 2001).24 This is of concern, as the use of the margin of appreciation is not justified to domestic circumstances. Moreover, it is a discredited tool. The European Court has not adequately (if at all) identified and explained the criteria it uses when applying the margin of appreciation, such that it is perceived to be a standard-less doctrine, the interpretation and application of which is unprincipled and inconsistent (Lester 1998 at 75–76). If the discretionary area of judgment is merely another guise for the margin of appreciation, similar criticisms of application may emerge. The British judiciary should distance itself from the terminology of ‘margin of appreciation’, and articulate more clearly the criteria for invoking its ‘discretionary area of judgment’, and how the discretion will operate.
Another concern arising from Kebilene flows from the identification for the need for deference where qualified or limited Convention rights are involved, as well as the possible extension of deference to the absolute rights. This encapsulates all of the rights protected under the HR Act. To extend deference to the elected arms of government in such broad circumstances promotes the underlying value of parliamentary sovereignty, but substantially undermines the worth of the human rights. The introduction of such a categorical deference rule raises many concerns, the first relating to the European Convention itself. By too readily deferring to the sovereign will of parliament, human rights will be unduly subjugated. This may be at odds with the fundamental purposes of the European Convention, which acknowledge that both an effective political democracy and human rights observance are required for justice and peace. Recall the view of the European Court in Young v UK: ‘... democracy does not simply mean that the views of a majority must always prevail; a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position’ (Young v UK at para 63). Were the judiciary to defer too readily to parliament with respect to absolute, qualified and limited rights, an effective political democracy would equate to a crude majoritarian understanding of democracy, rather than an effective political democracy that is interdependent with, and respectful of, human rights as is contemplated by the European Convention. It is unclear whether Lord Hope, in basing the need for deference on democratic grounds, appreciates this. Another problem lies with the efficacy of the Convention rights. A judiciary that too generously defers to the view of the elected arms of government would be guaranteeing rights that were merely theoretical and illusory, rather than those that are practical and effective.
Additional concerns surface when the terms of the HR Act are considered. First, how should this ‘discretionary area of judgment’ interact with s 19(1) Ministerial statements of (in)compatibility? Upon the introduction of all Bills to Parliament, the responsible minister must make a s 19(1)(a) statement of compatibility of the Bill with Convention rights or a s 19(1)(b) statement of incompatibility (discussed further below). The Lord Chancellor considers a s 19(1)(a) statement of compatibility to be a ‘strong spur to the courts to find means of construing statutes compatibly with the Convention’ (Irving 1997 in Wadham and Mountfield 1999: 30). In the absence of a s 19(1)(b) statement of incompatibility, there appears to be no justification for preferring deferential to non-deferential judicial interpretation. There is nothing in the Lord Chancellor’s statement to suggest that the ‘means’ to be employed in construing statutes must be deferential. On the contrary, the HR Act provides the government and parliament with a tool to use when the elected arms of government deem judicial deference to be necessary: that tool being a s 19(1)(b) statement of incompatibility. Why employ a categorical rule, such as the judicial affording of deference whenever an absolute, qualified and limited Convention right (that is, all of the Convention rights) is in issue, when a case by case approach would suffice?
Similar arguments can be made vis à vis the s 3 interpretative obligation. Section 3 obliges the court to interpret legislation, so far as it is possible to do so, in a manner compatible with Convention rights. This obligation is said to raise ‘a rebuttable presumption’ in favour of compatible interpretations (Steyn 1998: 155). This is a strongly worded interpretative obligation that the Executive and Parliament have sanctioned. The Executive and the Parliament have forewarning that to rebut this presumption, a clear indication of intent and clear legislative language is required. Again, the elected arms of government have methods to employ when judicial deference to their view of rights protection is considered necessary. Why use a categorical rule about interpretative deference over all of the Convention rights when a much more nuanced approach can be employed? This is quite a strict approach to deference in the context of ss 19 and 3. The reason for this will be elucidated in the next point.
We need to assess the underlying commitment of the HR Act to parliamentary sovereignty in this context. The entire HR Act is designed to ensure that Parliament retains its sovereign lawmaking powers. The HR Act imposes interpretative obligations on the judiciary only, with the power of judicial invalidation of legislation emphatically being rejected in favour of declarations of incompatibility. In this context, is judicial deference warranted? The judiciary does not have the last word on the scope and impact of Convention rights, nor does the judiciary have the last word on the validity of legislation. Parliament has the ability to override judicial interpretations of Convention rights by ordinary legislation, and can simply ignore declarations of incompatibility. Judicial deference toward the Convention rights unduly elevates parliamentary sovereignty over rights protection. A less deferential approach would not threaten parliamentary sovereignty, but would improve the quality of rights protection and democracy.25
From a rights perspective, the judiciary brings its non-partisan, impartial and expert point of view to bare on the debate about rights. Rights are supposed to insulate unpopular individuals and minorities from the whims of popularist trends and majoritarian forces. An unimpeded contribution to the rights debate from the arm of government that is immune from popularism and majoritarianism is vital. From a dialogue perspective, the greater the range of views about the scope and impact of rights, the better. The HR Act sets up an institutional debate between the arms of government. The debate ensures each arm is influenced by the unique perspective of the other arms. Institutionally:
(a) the Executive is to develop policy and translate that policy into draft legislation;
(b) the legislature is to convert worthy policy ideas into legislation keeping in mind the Convention rights the people have committed themselves to under the HR Act;
(c) the judiciary is to impartially assess the outcomes of the Executive and legislative processes against the Convention rights, with a particular mandate to achieve compatibility wherever it is possible to do so; and
(d) the Executive and legislature have the power to challenge any judicial assessments by overriding judicial interpretations and not responding to declarations of incompatibility.
All of these perspectives are valid in the debate and discussion about the reach of human rights protection. When Lord Hope refers to the ‘considered opinion of the elected body’ (Kebilene), he refers to the opinion as formed only after interactions (a) and (b). The elected arms of government benefit from interaction (c), such that it is interaction (d) that is truly ‘considered’. This is readily identifiable in the spirit and content of the HR Act. Why categorically employ the notion of judicial deference toward rights so as to mute the perspective of the judiciary? At the end of the day, the HR Act allows Parliament and the Executive to mute the judiciary; why do this prematurely before the judiciary contributes its legitimate institutional perspective to the debate, via a strict, broad ranging deference rule.26
The final concern that arises from Kebilene is the automatic classification of social and economic problems as areas requiring deference. A complete discussion of the justiciability of economic and social rights is beyond the scope of this article, suffice to say that the validity of the claim that courts are not well equipped to assess social and economic policy must be challenged. There are ways in which economic and social policy may be subject to some meaningful accountability under human rights instruments. Many aspects of civil and political rights that make them suitable to judicial review are shared with social and economic rights and issues (Hunt 1993: 141; Steiner and Alston 2000; Warner 1996: 395; Alston 1994; Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 1997). Moreover, economic and social rights are increasingly being recognised and implemented within domestic legal settings.27 Finally, the tools of justiciability and standing may be better tools for excluding inappropriate cases, rather than inflexible categorical rules of deference.
Let us turn to the interpretative obligations regarding the compatibility of domestic laws with Convention rights.
Section 3 of the HR Act imposes an interpretative obligation on courts and tribunals. As briefly mentioned, courts and tribunal must, so far as it is possible to do so, read and give effect to primary and subordinate legislation in a manner which is compatible with the Convention rights.28 This interpretative obligation applies to legislation whenever enacted. Foremost in the mind of a judge is the search for legislative meaning that is compatible with Convention rights. Only where the legislation clearly precludes a compatible interpretation will the judge be required to endorse and enforce an incompatible reading. In effect, s 3 creates ‘a rebuttable presumption in favour of an interpretation consistent with Convention rights. Given the inherent ambiguity of language the presumption is likely to be a strong one’ (Steyn 1998 at 155).
In fact, the Lord Chancellor indicated during debate that the interpretative obligation ‘will prove a strong form of incorporation’.29 According to the Lord Chancellor, the courts should ‘strive to find an interpretation of legislation which is consistent with Convention rights so far as the language of the legislation allows, and only in the last resort to conclude that the legislation is simply incompatible with them’.30 In public lectures, the Lord Chancellor refined his views, stating that the HR Act:
... while significantly changing the nature of the interpretative process, does not confer on the courts a licence to construe legislation in a way which is so radical and strained that it arrogates to the judges a power completely to rewrite existing law: that is a task for the Parliament and the Executive (Irvine 1999).
The Lord Chancellor referred to the interpretation precedents involving European Community Law to indicate the interpretation techniques that are available to ensure compliance of domestic legislation with community law. These techniques ensure compliance between the laws, ‘even when this requires straining the meaning of words or reading in words which are not there’ (Klug 1999: 254).
The Home Secretary was not as generous during parliamentary debate. The Home Secretary stated that ‘it is not our intention that the courts, in applying [section 3], should contort the meaning of words to produce implausible or incredible meanings’.31 Rather, s 3 is supposed to enable ‘the courts to find an interpretation of legislation that is consistent with Convention rights, so far as the plain words of the legislation allow’.32
Section 19 statements interact with the interpretative duty under s 3, and lend support to the idea of an interpretative presumption. Under s 19(1)(a), the Minister responsible for a Bill before the Parliament must make a statement that the provisions of the Bill are compatible with the Convention rights. If such a statement cannot be made, the responsible Minister must make a statement that the Government wants Parliament to proceed with the bill regardless of the inability to make a statement of compatibility under s 19(1)(b).33 The Government expects that a s 19(1)(b) statement ‘will ensure that the human rights implications [of the Bill] are debated at the earliest opportunity’ (Human Rights White Paper 1997: 3.3) and that ‘parliamentary scrutiny of the Bill [will] be intense’.34 Ministerial statements of compatibility are likely to be used as evidence of parliamentary intention.35 In relation to a s 19(1)(a) statement, the Lord Chancellor stated:
[I]t should be clear from the Parliamentary history, and in particular the Ministerial statement of compatibility which will be required by the Act, that Parliament did not intend to cut across a Convention right. Ministerial statements of compatibility will inevitably be a strong spur to the courts to find means of construing statutes compatibly with the Convention (Iriving 1997 in Wadham and Mountfield 1999: 30).
Although a s 19(1)(a) statement will be a ‘strong spur’ to interpret the legislation compatibly with Convention rights, the converse does not necessarily follow. A s 19(1)(b) statement will not inevitably result in the court favouring an incompatible interpretation of the legislation. The Government may issue a s 19(1)(b) statement because it is unsure of the status of the legislation, not because it intends to pass an incompatible law; as a matter of practice, this should be made clear in the statement itself. Moreover, the courts may disagree with the Government’s estimation of the legislation.
What should be made of s 3 and 19, and the statements of intention made during the passage of the Human Rights Bill through Parliament? Such parliamentary statements of intention are themselves, very indeterminate indications. At what point will an interpretation be too ‘radical’, ‘strained’, ‘contorted’, ‘implausible’ or ‘incredible’? At what point will the interpretative techniques used for European Community Law, which allow words to be strained, be considered an illegitimate judicial interpretation under the HR Act? How does a s 19(1)(a) statement of compatibility impact on the line between legitimate judicial interpretation and distortion? Does a s 19(1)(a) statement allow for a more radical interpretation? The answers to these questions have enormous impacts on the tension between the venerated parliamentary sovereignty and the judicial contribution to the rights debate, as well as to the commitment to human rights in the face of majoritarian pressures.
The jurisprudence on the interpretative obligation is instructive.36 The most in-depth analysis of the s 3 interpretive obligation occurred in Donoghue v Poplar Housing and Regeneration community Association Ltd. Lord Justice Woolf outlined an approach to interpretation (Donoghue at 204). First, the court must decide whether, regardless of the s 3 obligation, the legislation violates a Convention right. This is determined by comparing the scope of the Convention right with the impugned legislation. Second, if a violation would occur, the court must alter the meaning of the legislative words. The court must, however, ‘limit the extent of the modified [legislative] meaning to that which is necessary to achieve compatibility’ (at 204). Finally, the court must decide whether the altered legislative interpretation is ‘possible’. In so deciding, the court cannot legislate for itself. The courts ‘task is still one of interpretation’ (at 204). If the court must ‘radically alter the effect of the legislation’ in order to secure compatibility, ‘this will be an indication that that more than interpretation is involved’ (at 204). Lord Justice Woolf acknowledged that ‘[t]he most difficult task which courts face is distinguishing between legislation and interpretation’ (at 204). Lord Woolf suggests that ‘practical experience of seeking to apply s 3 will provide the best guide’ (at 204).
In the case of R v A (No 2), the House of Lords gave a broader scope to the interpretive obligation than in Donoghue. Lord Justice Steyn confirmed that ‘it will be sometimes necessary to adopt an interpretation which linguistically may appear strained’. Section 3 empowers judges to read down express legislative provisions or read in words so as to achieve compatibility. 37 Such an interpretation could qualify as a ‘possible’ interpretation, provided that the essence of the legislative intention was still viable. Judges could go so far as the ‘subordination of the niceties of the language of the section’ (R v A (No 2)). This interpretative approach was justified by reference to parliamentary intention: in enacting the HR Act, Parliament clearly intended that a declaration of incompatibility be a ‘measure of last resort’. In interpreting ordinary legislation, a clear parliamentary intention to justify an incompatible interpretation must be evident: ‘a clear limitation on Convention rights [must be] stated in terms’ (R v A (No 2)).
R v A (No 2) dealt with the admissibility of evidence in a rape trial. A, the defendant, wanted to lead evidence about the prior sexual behaviour of the complainant. Section 41 of the Youth Justice and Criminal Evidence Act 1999 (UK) prohibited the leading of such evidence without the leave of the court. The court could grant leave where the sexual behaviour was contemporaneous to the alleged rape (s 41(3)(b)) or the sexual behaviour is similar to past sexual behaviour (s 41(3)(c)). The case turned on whether exclusion of such evidence would undermine A’s right to a fair trial under art 6 of the Convention. The House of Lords held that the right to a fair trial is absolute. This right would be infringed if relevant evidence were excluded from trial, leading to an unjust conviction. Prior consensual behavior may be relevant to consent. Given the scope of the Convention right, the House of Lords had to interpret s 41 in a manner compatible with the right to a fair trial.
Lord Steyn held that it was ‘possible under s 3 to read s 41, and in particular s 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under art 6 of the Convention should not be treated as inadmissible’ (R v A (No 2) at 1563–64). Section 41(3)(b) was interpreted so as to admit evidence of contemporaneous sexual behaviour only if it was truly contemporaneous to the alleged rape. Section 41(3)(c) was interpreted so as to admit evidence of similar past sexual behaviour only if it was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial.38 On the facts, such evidence did exist and the matter was remitted back to the trial judge.
Lord Justice Hope was more restrained in his assessment of s 3. He held that any modified legislative interpretation should not conflict with the express language of the legislation, nor any necessary implications thereto.39 He preferred to read down any language that threatened compatibility. However, in R v Lambert, Lord Justice Hope conceded that it may be necessary to read in provisions to save legislation from incompatibility.40 Nevertheless, he emphasised that this power to read in ‘does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator’(R v Lambert at para 79).41 In R v Lambert, the House of Lords retained the original words used by the legislator, but altered the meaning of the words. Rather than imposing a legal burden of proof on the defendant which would violate art 6(2) of the Convention, the House of Lords imposed an evidential burden of proof on the defendant which the prosecution then had the legal burden of rebutting.
The case of Offen42 is of particular interest in Australia. This case concerned the imposition of mandatory life sentence for persons convicted of two serious offences. Section 2 of the Crimes (Sentences) Act provides that an automatic life sentence must be imposed on a defendant who has committed two serious offences. The Court of Appeal acknowledged that an automatic life sentence may potentially constitute inhuman or degrading punishment contrary to art 3 of the Convention or constitute an arbitrary interference with liberty contrary to art 5 of the Convention. These potentialities would be realised if s 2 was given a restricted interpretation and thereby considered a blanket rule.43 However, the Court of Appeal discovered a compatible interpretation by taking into account the intention of Parliament.
The norm behind the law ‘is that those who commit two serious offences are a danger or risk to the public’ (Offen at 276). Parliament only intended the mandatory life sentences to apply to those persons who had committed two serious offences and who constituted a danger or risk to the public. If, in all the circumstances, the person ‘does not create an unacceptable [danger or] risk to the public, he is an exception to this norm’ (at 276). The factors indicating the degree of risk a person constitutes were stated to include circumstances where the two ‘offences are of a different kind’, and where ‘a long period ... elapses between the offences during which the offender has not committed other at 277).44 Thus, the Court of Appeal secured a compatible reading of the law by excluding persons from the automatic life sentence where such persons did not constitute a significant danger or risk to the public. Lord Justice Woolf concluded that ‘[s]ection 2 ... therefore provides a good example of how the [HR] Act can have a beneficial effect on the administration of justice, without defeating the policy which Parliament was seeking to implement’ (at 277).
The interpretative obligation presents a major challenge under the HR Act, as the commitment to parliamentary sovereignty under the HR Act will inevitably clash with judicial contributions to rights protection. This has been acknowledged in the governmental and parliamentary debates about the Human Rights Bill (discussed above) and clearly acknowledged in Donoghue: ‘[t]he most difficult task which courts face is distinguishing between legislation and interpretation’(Donoghue v Poplar Housing Association at 204). The potential for disagreement over ‘possible’ interpretations will leave the judiciary open to claims of illegitimate judicial lawmaking and judicial activism. In respect of allegations of illegitimate lawmaking, legal realism — the notion that judges make law and policy when interpreting and applying the law — has long been recognised in common law jurisdictions. Nonetheless, the increased opportunity for judges to make law and policy under the HR Act may intensify the claims of illegitimate lawmaking. The approach of the British courts to human rights guarantees will augment this risk, as human rights guarantees are to be given a ‘generous interpretation avoiding what has been called “the austerity of tabulated legalism”, suitable to give to individuals the full measure of the fundamental rights and freedoms’ (Ministry of Home Affairs v Fisher at 328; see Attorney-General of Gambia v Monodou Jobe; Attorney-General of Hong Kong v Kee Kwong-kut; Vasquez v The Queen). In relation to allegations of inappropriate judicial activism, the judicial task of interpreting broadly worded rights that will be invoked in controversial cases, in and of itself will invite criticism. The approach the judiciary takes to its new interpretative task will also inevitably lead to allegations of activism.
The judiciary may find themselves in an unenviable position. The success of the rights project rests largely on the perceived legitimacy of the judges’ performance. If the judiciary is perceived to take too active an approach to rights, parliamentary sovereignists will claim illegitimate judicial activism and lawmaking in favour of rights. If the judiciary is perceived to be too deferential to parliament, rights advocates will equally claim illegitimate judicial activism and lawmaking in favour of majoritarianism and parliamentary rule. Such allegations have the capacity to influence judicial behaviour (Roach: 2001a; 2001b) such that the HR Act may fail to function according to its underlying goals. If the parliamentary sovereignists prevail, the inter-institutional dialogue approach will fail as any non-deferential input by the judiciary will be viewed as illegitimate. If the rights advocates prevail, we may witness a situation in which the elected arms of government simply overrule by legislation interpretations considered to be activist and ignore declarations of incompatibility. These are extreme outcomes, and may never eventuate. However, the best guarantee against such an eventuality is to understand the proper roles assigned to each of the institutional players under the HR Act, and the new status of human rights within the domestic setting.
Let us consider the role allocated to the judiciary under the HR Act. The interpretative role of the judiciary has changed in two significant ways: first, s 3 expands the interpretive options of the judiciary; and secondly, it obliges the judiciary to do as much as it possibly can to find meanings compatible with Convention rights. In relation to the former, the traditional approach to judicial interpretation was to find the true meaning of the words used by Parliament. Section 3 ‘goes far beyond the present rule’ (Human Rights White Paper 1997: 2.7) by enabling the judges, so far as it is possible to do so, to find a meaning that upholds Convention rights. In addition, the traditional interpretive rule required a clear ambiguity in legislation before a construction compatible with Convention rights could be justified (Beloff 1999: 29). Such ambiguity is no longer required, and an incompatible interpretation of legislation will only be justified if a clear legislative intention exists to support incompatibility (Human Rights White Paper 1997: 2.2–2.8).45 Basically, the presumption has been reversed, and this reversal has expanded the interpretative options of the judiciary. In relation to the latter, the risk of allegations of illegitimate judicial activism and lawmaking lies in the extent to which judges are willing to push legislative language in order to avoid incompatible interpretations. Where is the line between legislating and interpreting? Both of these changes will inevitably lead to criticism.
Criticism of judgments based on illegitimate lawmaking and judicial activism cannot and should not be avoided. However, vigilance in assessing the legitimacy of any criticism is vital. Two main bases for criticism come to mind. Criticism could be based on a comparison between the newer, broader interpretative technique with the old, more restricted interpretative technique. Such criticism would be unwarranted and should be vigilantly assessed as such.
Criticism could also be based on a perceived misapplication of the new interpretative technique, resulting in allegations of illegitimate judicial legislating and activism, rather than legitimate judicial interpretation. Such claims need to be deconstructed and assessed according to the underlying concerns which prompt the criticism. It is the assumptions underlying slogans, such as ‘judicial activism’, that need to be identified and debated in order to properly assess allegations of judicial activism. Kent Roach (2001a: 222; 2001b), in the context of the Canadian Charter of Rights and Freedoms 1982 (the Charter), explores allegations of ‘judicial activism’, and concludes that:
... the label ‘judicial activism’ obscures more than it illuminates because it allows commentators to criticise the Court without explaining why they believe a particular decision is wrong. Moreover, it allows critics to claim the high moral ground and hint at judicial impropriety, without explaining their often controversial views about judging, rights and democracy.
Roach considers various myths associated with the proper judicial function, rights and democracy. Various beliefs fuel perceptions that the judiciary are being activist, including: that judges should not decide issues beyond what is required by the very fact of the dispute before them; that judges should base their decisions only on the text of the rights instrument and framers’ intent; that in a liberal democracy, ‘real’ rights are rarely threatened; that rights are trumps for the judiciary to enforce against the elected arms of government; and that true democracy requires legislative supremacy (Roach 2001a: 207). Each of these assumptions represents views that people may validly hold. However, it is these assumptions that need to be discussed and debated, not slogans such as ‘judicial activism’ which ‘hints at, if not judicial impropriety, at least judicial overreaching, while hiding controversial assumptions about judging, rights, and democracy’ (Roach 2001a: 207).
In the context of the HR Act, the assumptions underlying claims to ‘judicial activism’ can be readily dismissed. To date, the judiciary has not gone beyond what is necessary to settle a live dispute in its HR Act judgments. Judges have and will go beyond the text of the European Convention and its framers’ intentions; however, this is legitimate because the European Convention, as incorporated under the HR Act, is a living instrument. The record of the UK before the European Court,46 and the cases decided by the British judiciary to date, illustrate that ‘real’ right have been violated and unduly limited in the liberal democracy of the UK. Under the HR Act, judicial perspectives on human rights do not trump those of the executive and legislature. The powers of the judiciary fall short of judicial invalidation of legislation, and both the legislature and executive have the capacity to respond to judicial declarations of incompatibility. Finally, democracy does not require legislative supremacy. The fundamental purpose of the European Convention is to secure peace and justice, which require both democracy and human rights. The HR Act reflects this by adopting a rights model that attempts to balance democracy (read parliamentary sovereignty in the UK context) with human rights values. Such deconstruction of claims of illegitimate judicial law making and activism is essential.
In concluding the discussion of the role of the judiciary under the HR Act, we must assess the decision to confer such a broad interpretative power on the judiciary in the context of the retention of parliamentary sovereignty. Given that more modern conceptions of democracy temper parliamentary majoritarianism with minimum human rights standards, too strong a commitment to parliamentary sovereignty under the HR Act presents risks for the judiciary. Noise and conflict amongst the institutions of government is not a bad thing per se (Waldron 1999: 26). However, illegitimate criticism of the judiciary is bad because it undermines its legitimacy and may have the ultimate impact of influencing judges in their decision making. This could undermine the new inter-institutional dialogue established under the HR Act. Moreover, too strong a commitment to parliamentary sovereignty seems dubious when you consider the willingness to concede it in other contexts (discussed below).
Let us now turn to the jurisprudence to date concerning s 3. The approach to s 3 interpretation outlined in Donoghue and refined in the later cases is to be expected. Each judgment has appropriately acknowledged the supremacy of Parliament by closely considering the chosen words of Parliament and the apparent intention of Parliament. Yet the judgments have been clear that the judicial priority is to find interpretations that are compatible with Convention rights, the clear intention of the HR Act is that declarations of incompatibility are an option of last resort. This may require the reading in or reading down of legislative words, and altering the intended legislative meaning of words. The judiciary has clearly indicated to the elected arms of government that they must be unambiguous in their intentions and language whenever and wherever they intend to violate Convention rights. To this end, the Executive and the Parliament can make their intentions clear by using preambles to legislation and via the s 19(1)(b) statement of incompatibility, as well as through precise legislative language.
Such an approach to interpretation is to be commended, as it is true to the HR Act and its underlying themes. It acknowledges the retention of parliamentary sovereignty, while strengthening the human rights accountability of the Executive and Parliament in a democratic system. The elected arms of government are forced to be frank about their legislative intentions and linguistically clear when they are violating rights (or risk a judicial interpretation that is compatible with rights). The elected arms of government then have the opportunity to justify their choice to violate or limit rights to the judiciary and the citizenry. These burdens of honesty and justification ultimately enable the citizenry to make a human rights informed choice about the performance of public office holders in the next election. It has the effect of significantly increasing human rights accountability and thereby human rights protection, without wholly depriving our elected institutions the power to act.47
The judicial declaration of incompatibility and the response mechanisms available to the elected arms of government are a significant step forward in terms of models of rights protection and enforcement. The brilliance lies in the capacity for an open inter-institutional dialogue about human rights, in which the unique and expert human rights perspectives of each arm of government are aired and debated. However, each institution of government must rise to the challenge of its new HR Act role. Without this, parliamentary sovereignty threatens to swamp the dialogue, with the concomitant consequences for rights.
Declarations of incompatibility
Sections 3 and 4
Sections 3 and 4 of the HR Act do not empower the judiciary to invalidate legislation found to be incompatible with Convention rights. In the case of incompatible primary legislation, s 4 empowers the court to make a declaration of incompatibility (Human Rights Act, ss 4(1), 4(2)). Declarations of incompatibility do not affect the validity, the continuing operation or the enforcement of the legislation that is subject to the declaration (Human Rights Act, ss 3(2), 4(1) and 4(2)). Accordingly, a declaration of incompatibility is not binding on the parties to the proceeding, such that the judge must apply and enforce the incompatible law in that case (Human Rights Act, s 4(6)). The power to make declarations of incompatibility is limited to the higher courts, being the High Court, the Court of Appeal and the House of Lords.48 These provisions apply to past and future legislation.49
In relation to subordinate legislation, similarly the judiciary is only empowered to issue a declaration of incompatibility if subordinate legislation is incompatible with Convention rights and the enabling primary legislation prevents the removal of incompatibility.50 Equally, such secondary legislation will be valid, continue to operate and be enforceable (Human Rights Act, ss 3(3) and 4(3) and 4(4)). During debate, Parliament clearly indicated that ‘[i]f it is the will of Parliament that something should be done that is incompatible with Convention rights, Parliament must be prepared to say so in primary legislation’.51 Incompatible subordinate legislation can only be justified if the primary legislator requires the incompatibility in primary legislation. Incompatible laws cannot be sanctioned by a subordinate legislature; nor should incompatible laws bypass the approval of the primary legislature. This requirement also ensures that the courts do not indirectly undermine the will of Parliament. If the courts were empowered to strike down subordinate legislation that was supported by primary legislation, the courts would effectively be challenging the primary legislation. The HR Act ensures that indirect, as well as direct, affronts to parliamentary sovereignty by the courts do not occur.
The intended operation of declarations of incompatibility is gleaned from the parliamentary debates on the Human Rights Bill. These statements should be read in conjunction with the s 3 statements, as the sections operate in tandem. Parliament emphasised that its preference is for the judiciary to identify legislative interpretations that are compatible with the Convention, rather than frequently make declarations of incompatibility. In debate, Lord Cooke noted that ‘[t]raditionally, the search has been for the true meaning; now it will be for a possible meaning that would prevent the making of a declaration of incompatibility’.52 In the words of the Lord Chancellor, ‘in 99 per cent of cases ... there will be no need for judicial declarations of incompatibility’.53 The Home Secretary expected that ‘in almost all cases, the courts will be able to interpret legislation compatibly with the Convention. However, we need to provide for the rare cases where that cannot be done ...’.54
The fact that there have been only a handful of judicial declarations of incompatibility to date reflects the intention of Parliament that compatible interpretations are to be preferred to declarations of incompatibility.55 The first judicial declaration of incompatibility was made in Alconbury. Under the relevant planning legislation, the Secretary of State could ‘call in’ planning applications for the purpose of determining the application. Such determinations of the Secretary were open to judicial review, but there was no appeal on the facts or the merits. The Divisional Court held that the planning legislation was incompatible with the art 6 right to an independent and impartial tribunal. The Secretary did not constitute an independent and impartial tribunal. A compatible interpretation would, however, be ‘possible’ if an appeal de novo from the Secretary’s decision to an independent and impartial tribunal was available. However, the planning legislation did not so permit. The House of Lords, on appeal, overturned the decision of the Divisional Court and set aside the declaration of incompatibility. According to the House of Lords, absence of independence or impartially in a decision maker can be cured by subsequent review by an independent and impartial tribunal. As per Lord Slynn, subsequent ‘sufficient judicial control’ (Alconbury at para 49) does not necessarily require a full de novo hearing or merits review. A ‘review of the legality of the decisions and of the procedures followed’ would suffice (Alconbury at para 49).
In Ex parte H, a declaration of incompatibility was made in relation to the discharge criteria under the Mental Health Act 1983 (UK), ss 72(1), 73(1). Under the legislation, the burden to prove that grounds for continued detention no longer exist was placed on the patients. The Court of Appeal held that this reverse burden violated arts 5(1) and 5(4) of the Convention. Under the Convention rights, the burden of proof should have been placed on the Mental Health Review Tribunal, not the patient. In other words, it was the Mental Health Review Tribunal that had to be positively satisfied that all criteria justifying the patient’s detention in hospital for treatment continued to exist before refusing a patient’s discharge.56
In Wilson v First County Trust Ltd, provisions of the Consumer Credit Act 1974 (UK) were found to be incompatible. The Act provided that any misstated credit agreement becomes a ‘regulated agreement’. In this situation, the credit agreement misstated the amount of credit being extended. Regulated agreements are only enforceable by court order, but under s 127, a court cannot make an order if there is no document signed by the debtor recording the agreement. In essence, the ‘irreducible minimum requirement’ (Wilson at para 43) of the provision — ‘that no enforcement order can be made unless there is a document signed by the debtor which contains all the prescribed terms of the agreement’ (Wilson at para 43) — was incompatible with Convention rights, such that a s 3 interpretation was precluded. Accordingly, the inflexibility of s 127 was held to be incompatible with the right to a fair trial (art 6(1)) and the peaceful enjoyment of possessions (art 1 of Protocol 1).
In the International Transport Roth GmbH case, the compatibility of the penalty regime under Pt II of the Immigration and Asylum Act 1999 (UK) was considered. The penalty regime applied to persons dishonestly and/or carelessly transporting clandestine entrants into the UK. Convention issues involved the right to a fair trial (art 6) and the right to the peaceful enjoyment of property (art 1 of Protocol 1). Both the High Court (International Transport Roth GmbH case 2001) and the Court of Appeal (International Transport Roth GmbH case 2002) declared the penalty regime incompatible with Convention rights.57 The High Court recognised that a margin of discretion should be given to lawmakers in the area of immigration, but undue deference to the elected representatives was not warranted in this situation.58 The Court of Appeal also afforded appropriate deference to the executive and legislature in the area of immigration control.59
According to the Court of Appeal, the penalty regime was found to impose a criminal charges and offences, thus attracting the safeguards of art 6 (International Transport Roth GmbH 2002 per Brown LJ at para 42, per Parker LJ at paras 167–171) The penalty imposed by the regime was GBP2,000 for every clandestine entrant found concealed in a carrier’s vehicle. Lord Justices Simon Brown and Jonathan Parker found that the severity and inflexibility of the penalty, without the possibility of mitigation, violated the art 6 right to a fair trial. In particular, the inability to have the penalty fixed by an independent and impartial tribunal was offensive (International Transport Roth GmbH 2002 per Brown LJ at para 47, per Parker LJ at paras 183–184). Moreover, Lord Justice Jonathan Parker held that the reversal of the onus of proof also violated art 6, as it ‘constitutes a disproportionate and unjustifiable inroad into the carrier’s right of silence and hence into the presumption of innocence which is expressly safeguarded by art 6(2)’ (International Transport Roth GmbH 2002 at para 182).60
The penalty regime also attracted the property rights under art 1 of Protocol 1 of the European Convention. The penalty regime allowed for the seizure of property – in this case, the vehicle carrying the clandestine entrants — as security for payment of financial penalties that may be imposed under the Act. The exercise of this power of seizure, however, was not reviewable by an independent tribunal. The majority held that this violated art 1 of Protocol 1, for imposing an excessive burden on the right to peaceful enjoyment of property (International Transport Roth GmbH case per Brown LJ at para 53, per Parker LJ at para 193). Thus, a compatible interpretation of the penalty regime was not possible, and a declaration of incompatibility was issued.61 This is an example the of Court acknowledging the desirability of a goal, but rejecting the legislative outcome because of its heavy-handedness:
Even acknowledging, as I do, the great importance of the social goal which the scheme seeks to promote, there are nevertheless limits on how far the state is entitled to go in imposing obligations of vigilance on drivers ... to achieve it and in penalising any breach. Obviously, were the penalty heavier still and the discouragement of carelessness correspondingly greater, the scheme would be more effective and the policy objective fulfiled to an even higher degree. There comes a point, however, when what is achieved is achieved only at the cost of basic fairness. The price in Convention terms become too high (International Transport Roth GmbH 2002 per Brown LJ at para 53).
The reason for favouring judicial declarations of incompatibility over judicial invalidation centred on the preservation of parliamentary sovereignty. According to the Government’s White Paper:
In this context, parliamentary sovereignty means that Parliament is competent to make any law on any matter of its choosing and no court may question the validity of any Act that is passed. In enacting legislation, Parliament is making decisions about important matters of public policy. The authority to make those decisions derives from a democratic mandate. Members of Parliament in the House of Commons possess such a mandate because they are elected, accountable and representative. To make provision in the Bill for courts to set aside Acts of Parliament would confer on the judiciary a general power over the decisions of Parliament which under our present constitutional arrangements they do not possess, and would be likely on occasions to draw the judiciary into serious conflict with Parliament. There is no evidence to suggest that they desire this power, nor that the public wish them to have it. Certainly this Government has no mandate for such change (Human Rights White Paper 1997: 2.13).
This sentiment was confirmed in debate. According to the Lord Chancellor, the judicial declaration mechanism is to guarantee ‘Convention rights which maximise the protection to individuals while retaining the fundamental principles of parliamentary sovereignty’.62 And, of course, the elevation of parliamentary sovereignty is based on Parliament’s democratic mandate.
The ability to commit so firmly to parliamentary sovereignty, coupled with bringing rights home, must be explored. To this end, there is no doubt that parliamentary sovereignty post-HR Act is not the same as parliamentary sovereignty pre-HR Act. Understanding this is vital to accepting the new balance between human rights and inter-parliamentary sovereignty, and thereby accepting the new role of the judiciary in the inter-institutional debate about the directions of society and the vulnerable within society. Without recognition of this changed notion of parliamentary sovereignty, the human rights dialogue framework may fail.
In considering the post-HR Act version of sovereignty, the first issue to note is the apparent flexibility of the application of the concept of parliamentary sovereignty. Successive British governments and parliaments have been content to manipulate this concept when it suits, but to shelter behind it when it suits. Threats to parliamentary sovereignty were not enough to stop the transfer of legislative competency to the European Union in the 1970s and beyond (Emmott and Manasian 1996: 79; Marshall 1998: 76; Wade 1998: 66); nor was it enough to stop the transfer of broad legislative powers to the executive under the remedial order provisions of the HR Act (discussed below). Yet parliamentary sovereignty is upheld as the lynchpin of democracy in order to prevent the transfer of too much power to the judiciary. Such unquestioning adherence to a political theory that, in other contexts has been manipulated, is a cause for concern. For present purposes, it suffices to note that a change to the contours of parliamentary sovereignty is not diabolical.
The European Convention’s own conception of the supposed tension between human rights and democracy (read parliamentary sovereignty in the UK context) should also be recalled. As discussed above, the Preamble to the European Convention indicates that both an effective political democracy and human rights are requisite ingredients for justice and peace. Democracy and human rights are implicitly perceived as interdependent and compatible. Moreover, the rights protected within the European Convention indicate that democracy is one fundamental value amongst many that require protection and promotion. A proper balance between parliamentary sovereignty and human rights must be achieved if a commitment to human rights is to accomplish anything. An over-commitment to parliamentary sovereignty may distort human rights outcomes.
Finally, the actual concept of parliamentary sovereignty protected under the HR Act must be explored. The justification for parliamentary sovereignty remains the same, and this is based upon Parliament’s democratic mandate. Parliament, being elected by and thus responsible and accountable to the electorate, should be the highest authority within the polity. However, the HR Act directly and indirectly confines the sovereignty of Parliament. Parliamentary sovereignty post-HR Act is simply not the same as pre-HR Act, and an appreciation of this is imperative for the success of the new institutional human rights compact.
Three aspects of the HR Act confine parliamentary sovereignty: namely, the s 19(1) statements, the interpretive obligations, and the mechanism of judicial declarations of incompatibility. First, the Government and Parliament are no longer free to enact any legislation without first considering its effect on Convention rights under s 19(1). The relevant Minister is under a positive obligation to assess the human rights implications of all Bills laid before parliament under s 19(1). Admittedly, the Minister, having turned his or her mind to the human rights implications, may choose to proceed with a Bill that is considered to be incompatible with Convention rights. However, the fact remains that human rights concerns are brought to the fore in the policy creation, legislative drafting and the parliamentary law making processes. Post-HR Act, human rights concerns are an obligatory consideration amongst all other competing demands. It has been argued that this, in and of itself, can lead to policy distortion (see generally Mandel 1994; Knopff and Morton 1992; Morton and Knopff 2000). This was not the case pre-HR Act.
Secondly, the interpretive obligation imposed on courts under s 3 ensures judicial oversight of exercises of parliamentary sovereignty for human rights concerns. Judges have been empowered to do all that is ‘possible’ to construe the legislative words adopted by the sovereign Parliament in order to avoid an incompatibility between the legislative words and Convention rights. Given that the alternative to a compatible interpretation — the issuance of a declaration of incompatibility — is viewed as a ‘last resort’, it is fair to conclude that judges have been given wide and significant authority over the ultimate meaning of the legislative words. Indeed, the cases to date indicate a willingness to modify intended legislative meanings to ensure compatibility, as well as to read down or read in legislative words to achieve compatibility. This approach to interpretation is envisaged in the HR Act and was canvassed during parliamentary debate about the HR Bill. In fact, it was expressly recognised as a significant change in the interpretative process (Lord Irvine 1999). This is a legitimate approach and it must be recognised for what it is: a weakening of Parliament’s claim to traditional notions of sovereignty.
Thirdly, judicial declarations of incompatibility alter the previously understood notion of parliamentary sovereignty. On the one hand, parliamentary sovereignty is said to be embedded by the declaration of incompatibility mechanism, under which incompatible legislation is still valid, operates and is enforceable, and by the fact that the government and parliament are under no duty to respond to such a declaration (discussed below). On the other hand, two indirect, extra-governmental factors influence the parliamentary and governmental decisions whether to respond. The first is public opinion. If there is significant public pressure to change a law in the face of a declaration of incompatibility, the elected arms of government ignore this at their own electoral peril. This is consistent with parliamentary sovereignty, as it is on behalf of the public that parliament exercises its supreme lawmaking power. In the context of human rights cases, however, such public pressure and the might of majority opinion may never come to bear, as those that require such public rallying tend to be the unpopular or a minority. This is one of the weaknesses of the compromise between rights protection and parliamentary sovereignty. As stated, democracy (again, read parliamentary sovereignty in the UK context), is but one concern among many competing concerns in a polity. The preamble of, and the rights protected in, the European Convention not only make this clear, but also indicate that democracy and human rights are interdependent. To promote one at the expense of the other is problematic from a rights perspective, ultimately undermining the Government’s commitment to bringing rights home.
The second influence is the enduring right of a victim to petition the European Court. Although there is no formal obligation on the Government or Parliament to react to a declaration of incompatibility under the HR Act, the threat of petition to the European Court creates real indirect pressure and great incentive to respond. To be sure, declarations of incompatibility and the right to petition do not completely undermine the sovereignty of the elected arms of government, as neither the British judges, nor the European Court, can dictate to the Government or Parliament the precise response to cure an incompatibility or violation. But nonetheless, the individual’s capacity to pursue the issue beyond the UK, the influence of the two levels of jurisprudence, and the influence of the public at large alter the freedom of choice to respond or not to respond, and this in turn alters the traditional understanding of parliamentary sovereignty.
Accordingly, parliamentary sovereignty needs to be re-conceived. In a formalistic sense, the parliament remains omnipotent. However, in reality multiple forces are at work to temper such sovereignty. Indeed, the HR Act legitimises the internal and external pressures on sovereignty. Without a firm understanding of this, the inter-institutional dialogue framework of the HR Act may fail, and human rights protection would be compromised thereby.
Responses to declarations of incompatibility
Responses under the HR Act, ss 6, 10 and Sch 2
There are three valid responses to a declaration of incompatibility. First, there may be inaction from the Parliament and Government; secondly, the Parliament may respond via the ordinary legislative process; and thirdly, the Government may respond via a ‘remedial order’. According to the Government’s White Paper, a declaration of incompatibility ‘will almost certainly prompt the Government and parliament to change the law’ (Human Rights White Paper 1997: 2.10). The Lord Chancellor describes the declaration of incompatibility as ‘a new mechanism through which the courts can signal to the Government that a provision of legislation is, in their view, incompatible’, indicating that it ‘is then for Government and Parliament to consider what action should be taken’.63 In response to a declaration of incompatibility, the Home Secretary suggested that ‘... the Government would have to consider, and in most cases it would consider the position pretty rapidly’.64
The Government and Parliament can expect intense public interest in their response to a declaration of incompatibility. Unfortunately, it cannot be assumed that public interest will be accompanied by strong public pressure to change the law. As much as it is predicted that human rights, once given, inhere in all individuals such that any violation of human rights should be resisted, this is not guaranteed. Those that most rely on human rights are the unpopular and the minority, and they cannot assume public interest in their issue, let alone support for the respect of their human rights.
The preservation of parliamentary sovereignty is supported by the fact that the elected arms of government can respond to judicial decisions, and the range of responses available to them. Let us undertake a more detailed consideration of the available responses. First, the Parliament and Executive can choose to do nothing. There is no compulsion to respond under the HR Act. Although s 6(1) makes it unlawful for a ‘public authority’ to ‘act’ in a manner incompatible with Convention rights, s 6(3) excludes both Houses of Parliament from the definition of ‘public authority’. Moreover, even though an ‘act’ includes a failure to act, it does not include a failure to introduce or lay before Parliament a proposal for legislation, nor a failure to make any primary legislation or remedial order (Human Rights Act, s 6(6)). In other words, neither House of Parliament will act unlawfully if it introduces or passes legislation that is incompatible with Convention rights; nor will a failure to introduce or pass legislation or a remedial order to correct an incompatibility result in unlawfulness. Again, the sovereignty of parliament is given as the reason for so excluding both Houses of Parliament:
[Section 6] excludes the Houses of Parliament from the category of public authorities, for very good reasons. What the [Act] makes clear is that Parliament is supreme, and that if Parliament wishes to maintain the position enshrined in an Act that it has passed, but which is incompatible with the convention in the eyes of a British court, it is that Act which will remain in force.65
Such inaction by the Parliament and Executive indicates that the institutional view of the judiciary did not alter their view of the legislation and the balance struck with respect to Convention rights. In this situation, the victim can seek redress in the European Court, and the general public can express its (dis)satisfaction with the legislature’s response at the next election.
Secondly, the Parliament may decide to pass ordinary legislation in response to the declaration. The Parliament may take this course for any number of reasons. The most obvious reason is a reassessment of the legislation in light of the independent non-majoritarian and expert view of the judiciary. This is a legitimate interaction between the Parliament and the judiciary, recognising that both institutional perspectives can shed light on the limits of lawmaking and respect for human rights. The Parliament may also change its views in response to public pressure arising from the declaration of incompatibility. If the reasoning of the judiciary inheres in the citizenry, it is quite correct for the representatives of the citizenry to implement this change. Finally, the threat of the parties subject to the declaration of incompatibility vindicating their Convention rights in the European Court could be the motivation for change.
Finally, a Minister is empowered to take remedial action. Remedial action may only be taken if the courts have issued a declaration of incompatibility (Human Rights Act, s 10(1)(a))66 or if it appears that, having regard to a finding of the European Court against the UK,67 a provision of domestic legislation is incompatible with a Convention obligation (Human Rights Act, s 10(1)(b)). If either condition is satisfied, and if the relevant Minister considers that there are ‘compelling reasons’ for proceeding, the Minister may, by order, make such amendments to the legislation as are considered necessary to remove the incompatibility (Human Rights Act, s 10(2)).68 All remedial orders must be by statutory instrument (Human Rights Act, s 20(1)). According to the Lord Chancellor, ‘a remedial order would not be used, and in our view could not be used, for any other purpose ... [than] to remove incompatible provisions of legislation in an effective and tidy way’.69 Where legislation, presented to Parliament with a s 19(1)(a) statement, is nonetheless found to be incompatible by the courts, ‘it is difficult to see how the Minister could withhold remedial action’ (Lord Irvine 1998: 4). However, the Secretary of State for the Home Department did envisage that the Government and Parliament may refuse to change the law in the face of a declaration of incompatibility in some circumstances, quoting as an example the issue of abortion.70
Remedial orders must ultimately receive the approval by resolution of both Houses of Parliament. In the ordinary situation, a remedial order drafted by the Minister will be before Parliament for 120 days and will not come into effect unless it is approved by a resolution of each House of Parliament.71 However, there is provision for a fast track procedure. If the Minister declares the matter urgent, parliamentary approval is not required for the order to become operative. Under this fast track procedure, the Minister need only present the order to each House of Parliament ‘after it is made’ (Human Rights Act, Sch 2 at paras 2(b), 4(1)). The remedial order will cease to have effect 120 days after it was first made unless it is approved by a resolution of each House of Parliament (Human Rights Act, Sch 2 at para 4(4)). However, anything previously done under the order remains valid. If the fast track remedial action is not approved, all action done under to the remedial order remains legal.
In terms of substance, remedial orders may contain incidental, supplemental, consequential and transitional provisions. Remedial orders may be used not only to amend or repeal primary legislation that contains the incompatible provision(s), but also primary legislation other than that which contains the incompatible provision (Human Rights Act, Sch 2 cll 1(1)(a) and (2)(a)).72 Remedial action may be retrospective, except where retrospective operation would render a person guilty of an offence (Human Rights Act, Sch 2 cll 1(1)(b) and (4)). Remedial orders may provide for the delegation of specific functions, and may make different provision for different cases (Human Rights Act, Sch 2 at para 1(1)(c) and (d)). The Government White Paper thought it plain that a remedial order would only deal with provision that were incompatible with Convention rights, along with necessary consequential amendments only: ‘Ministers would not have carte blanche to amend unrelated parts of the Act in which the breach is discovered’ (Human Rights White Paper 1997: 2.19).
The only remedial order made to date is in response to the Ex parte H declaration of incompatibility. The Mental Health Act 1983 (Remedial) Order 2001 states in its preamble that the ‘Secretary of State considers that there are compelling reasons for proceeding by way of a remedial order’ and that ‘it appears to the Secretary of State that, because of the urgency of the matter, it is necessary to make the order without a draft being approved by resolution of each house of Parliament’. No reasons are given for the ‘compelling’ and ‘urgent’ assessments. Basically, it removes the burden of proof placed on the patient seeking discharge. It provides that the Mental Health Review Tribunal shall direct the discharge of a patient if it is not satisfied the criteria justifying detention continues.73
If the judiciary was empowered to invalidate incompatible legislation, the judiciary would be the final arbiters on the content of the Convention rights and how Convention rights are to be balanced against other competing rights and interests. This would exclude the other arms of government from human rights debate. The mechanism of declarations of incompatibility and the capacity for Parliament and the Government to respond the judicial articulations of human rights, on the other hand, promote a healthy inter-institutional dialogue about human rights.
By allowing for declarations of incompatibility (rather than judicial invalidation), debate about the human rights project continues between the represented, and the elected and unelected arms of government. The judiciary does not have a monopoly over society’s deepest commitments. The judicial pronouncement of a declaration of incompatibility is only one of three institutional views on the scope of the Convention rights. Parliament and the Government are equally entitled to their view under the HR Act. Ensuring that no arm of government has a monopoly on the human rights endeavour ensures a more complete exploration of rights, with the concomitant improvement of their content as differing perspectives are brought to bear. Moreover, it ensures that no arm of government simply transfers its responsibility for human rights to another.
Given that the meaning and scope of human rights and democracy are ongoing debates (see generally Marks 2000; Debeljiak 2002; Tully 2002) dialogue models for rights protection are meritorious. However, the UK model does pose particular concerns.
Again, we return to concerns about the sovereignty of Parliament, in particular to its seemingly (and dubious) flexibility. The foremost concern relating to the response mechanisms is the threat to parliamentary sovereignty posed by the executive ability to amend legislation. This mode of remedy basically ratifies the use of a Henry VIII clause; that is, the change of primary legislation by subordinate legislation. In usual circumstances, this must be considered an affront to the sovereignty of Parliament, given that the will of one elected parliamentarian (being the responsible minister) may override the will of the Parliament as a whole. This threat is most significant under the fast track procedure, as anything done pursuant to a remedial order, which is not subsequently approved by Parliament, remains lawful. The significance is amplified by the potential scope of remedial orders. The Minister can amend the incompatible primary or subordinate legislation, as well as legislation other than the incompatible legislation. Moreover, the Minister can pass incidental, supplemental, consequential and transitional provisions.
The notions of ‘compelling’ and ‘urgency’ under the remedial order mechanism are an attempt to lessen the scope of the power of the executive. However, neither notion is an effective brake. During parliamentary debate, the concept of ‘compelling’ was explored. The Government was not willing to limit ‘compelling reasons’ to matters such as the national security, public health or the liberty of the individual. It did indicate that compelling circumstances could include ‘a decision in higher courts in relation to basic provisions of criminal procedure affecting the way in which, perhaps, all criminal cases must be handled. “Compelling” is a strong word.’74 Such attempts at definition are welcome, however two concerns remain. First, there is no obligation on the relevant Minister to state why ‘compelling’ reasons exist. Indeed, no explanation was given with respect to the Mental Health Act 1983 (Remedial) Order 2001. Secondly, there is no sanction for exploiting the remedial order procedure. These issues — about definition, obligations to explain and accountability for exploitation — apply equally to the issue of ‘urgency’ under the fast track mechanism. Another defence of the Henry VIII clause proffered in the parliamentary debates was that primary legislation is to be preferred to subordinate legislation: ‘The requirement for compelling reasons ... is there to make it absolutely clear that a remedial order is not a routine response in preference to fresh primary legislation.’75 However, the expression of a preference, rather than a compulsion, is far from comforting.
Another concern associated with parliamentary sovereignty arises from the practices and conventions that may develop between the Parliament and the Executive in relation to remedial orders. The HR Act embodies a particular kind of parliamentary sovereignty. It preserves legislation from judicial invalidation, whilst contemplating that the executive can override primary legislation by secondary legislation via the remedial order mechanism. Will this peculiar settlement of the parliamentary sovereignty issue result in a constitutional convention upon the parliament to assent to all remedial orders? The answer remains to be seen.76 In terms of practice, this peculiar settlement of parliamentary sovereignty forestalls debate by parliament concerning the substance of the remedial order. This is problematic, particularly in the context of the fast track procedure as remedial orders are effective immediately and, if the remedial order does not get parliamentary approval, anything done under it remains lawful nonetheless. It is less problematic under the ordinary remedial order procedure, as parliament can simply withhold its consent. However, the pressure to respond to a declaration of incompatibility may be sufficient to force the parliamentary will.
Ultimately, the selective protection of the supremacy of Parliament — the protection of the supremacy of Parliament vis à vis the courts but not vis à vis the Executive — under the HR Act is suspect. Why is it used as a shield to justify not conferring a power to the judiciary to invalidate legislation, and yet is ignored when threatened by Executive remedial actions? To be sure, this question is one of perceived democratic pedigree between the judiciary and the Executive. However, this does not stand up to scrutiny as democracy is not the only value society must venerate and, even if it were, the democratic pedigree of one Minister acting alone is questionable. In the end, rigid adherence to the supremacy of Parliament vis à vis the judiciary may be the downfall of the human rights project, despite the fact that it is only a theory and a theory capable of manipulation at that.
The remedial order provisions threaten the doctrine of the separation of powers. The doctrine of separation of powers is threatened by a system that allows the Executive to decide the outcome of the judicial process. One aspect of judicial power is the capacity to finally determine the rights and duties of parties before the court. Upon a legalistic reading of the HR Act, where a judicial declaration of incompatibility is made, one could argue that the rights and duties in a controversy are finally decided by the judge, in the sense that the judge finally decides the issue by applying the incompatible legislation. This argument is disingenuous and elevates form over substance. In reality, a declaration of incompatibility may be just the beginning — the requisite trigger — for the remedial mechanism. Where a remedial order is made, and retrospectively applied to the controversy that inspired the declaration of incompatibility, it is the executive action that ultimately and finally determines the rights and duties of the parties. The breach of separation of powers is even greater where the Executive is a party to the case. Where a remedial action followed from a declaration of incompatibility, the executive would become the judge of its own cause (Wade 1998: 67). This situation is likely to arise frequently, given that vertical application of human rights is the norm. In addition to separation of powers concerns, the rule of law is undermined if legal rights and remedies can be changed or decided by a discretionary act of the Executive (Wade 1998: 67).
There is also a risk that the power to make a remedial order may, itself, breach Convention rights. Article 6 of the European Convention requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in both civil and criminal matters. In certain situations (in particular, where a retrospective remedial order is made which addresses the controversy which was the subject of the declaration of incompatibility) the remedial order provisions allow a Minister to decide, by Executive Act, the outcome of the matter. Independence and impartiality is lost where the makers of the law influence (indeed, dictate) the implementation of the law (Wade 1998: 67). In addition, the power to make different remedial orders for different cases threatens equality before the law. Equality before the law is protected under art 14 of the European Convention, and this is a guaranteed Convention right under s 1 of the Human Rights Act.
Another concern with the declaration of incompatibility mechanism and the response mechanisms is one of inertia. In the context of an adjudicated human rights violation, who should benefit from Executive or legislative inertia? (see generally Debeljak 2002; Roach 2001a). This has implications not only for rights bearers, but on the preferred human rights dialogue model.
Under the Canadian Charter, it is the individual whose rights are violated that benefits from parliamentary inertia. Similarly to the HR Act, the Charter also establishes a dialogic framework vis à vis human rights. Section 1 of the Charter ‘guarantees the rights and freedoms within subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’. Thus, the legislature must respect the Charter rights when legislating, unless it is willing to justify a violation as per s 1. Section 1 represents the first element of institutional dialogue. If the judiciary decides that a challenged legislation limits or violates a Charter right, the legislature is then given a chance to justify this limitation or violation according to the s 1 standard. If unconvinced by the s 1 justification, the judiciary is empowered to invalidate the legislation (which is in contrast to the HR Act declaration of incompatibility power).
However, that is not the end of the dialogue. The legislature may consider the judicial assessment of its rights limiting choices under s 1 to be unwarranted. In this situation, the legislature can pass legislation notwithstanding the Charter guarantees under s 33. In other words, the legislature can re-enact the very legislation that was judicially invalidated by expressly and temporarily overriding the Charter rights.77 Section 33 provides ‘a structural check on judicial power that better balances “the principle of constitutionalism with active popular sovereignty”’ (Manfredi 2001: 195). Thus, the Charter establishes a dialogue between the institutions of government, and the sections discussed act as a brake on the excessive or unreasonable exercise of power of the legislature (s 1) and the judiciary (s 33).
In terms of the benefit of legislative inertia, the Charter favours the individual whose rights have been violated over the Parliament, whereas the HR Act favours the Parliament over the individual. There are many reasons why, in the face of a judicial invalidation or declaration of incompatibility, the Parliament does not respond. There may be no clear mandate (see most famously R v Morgentaler); the legislative timetable may not allow; the Parliament may not want to create an election issue out of human rights; and more disturbingly, inertia may be motivated by a mean-spirited refusal to acknowledge the violation of the rights of the unpopular or a minority. Whatever the reason for inertia, a society committed to minimum human rights standards should prefer the individual to benefit from inertia, rather than the Parliament. The power imbalance between the individual and the Parliament alone dictates this. Moreover, preferring the individual does not threaten the underlying themes of the HR Act. Preferring the individual shows a commitment to the respect of human rights without undermining parliamentary sovereignty, as s 33 of the Charter ensures. In addition, preferring the individual does not compromise the dialogue model of rights protection, as is illustrated by the differently constituted dialogue model of the Charter.
In practical terms, the declaration of incompatibility and remedial order mechanisms may prove unworkable. There is no guarantee that a judicially assessed violation of Convention rights will be remedied within Britain. In situations of incompatibility with Convention rights, because courts are unable to provide a litigant the relief they want — the non-application of a law that violates Convention rights — ‘it makes it far less likely that people will litigate with a view to seeking declarations of incompatibility’ (Wadham and Mountfield 1998). A few consequences flow from this. Firstly, the benefits intended to flow from the inter-institutional dialogue about rights will be muted. Secondly, the mainstreaming of rights will not occur. Mainstreaming requires the active participation in the rights dialogue been the arms of government, between the Government and citizens, and between citizens.
Even where litigants do attempt to vindicate their rights and a judicial declaration of incompatibility is made in their favour, they are not guaranteed an adequate remedy. Parliament may not respond to the judicial declaration because of want of parliamentary time or, more unfortunately, because of want of electoral support. The latter reason is unfortunate because it is the domination of the majority that Convention rights are intended to protect against. The responsible Minister similarly may choose not to pass a retrospective remedial order, if they pass one at all.
In a civil case, if Convention rights have been violated but it is clear that this was authorised by statute then few litigants will wish to take a case which they are likely to lose unless there is a real prospect of benefit to them such as a retrospective change in the law (Wadham and Mountfield 1998).
The HR Act appears to be a workable compromise between parliamentary sovereignty and rights protection. The drafting and implementation of the HR Act proceeded on the basis that such a compromise was necessary, that neither parliamentary supremacy nor judicially enforceable human rights protection should trump. The result is a strong judicial interpretative obligation and a judicial power to make declarations of incompatibility, matched with parliamentary and Executive response mechanisms. These provisions force all three arms of government into a dialogue. Each arm of government can express its view of what human rights require. Human rights become central to the debate. This ensures that majoritarian decisions are justified not purely on the basis of competing majority interests, but also on the basis of rights. At the end of the day, the elected arms of government make the final decision, but this is done at their peril. Unhappy victims can still seek relief from the Strasbourg organs, and unhappy voters can express their dissatisfaction at the ballot box.
However, the compromise does not come without risks to the protection of rights. Too strong a commitment to parliamentary sovereignty threatens the promotion and protection of human rights. To be sure, the scope and definition of democracy, let alone, human rights is a matter of ongoing contention. Grand notions, such as democracy and human rights should be approached provisionally, and conceived of ‘as ongoing accomplishments. They are never finished, but have to be constructed, deconstructed and reconstructed in ever-changing circumstances’ (Marks 2000: 149). This necessitates dialogue models of rights protection. However, a model that gives too much emphasis to the majoritarian mechanisms may compromise the essence of human rights, which is to protect the vulnerable, unpopular and minority groups within society. Unless the nuanced approach to the inter-institutional dialogue in the HR Act is fully appreciated, human rights concerns may have little impact on the decisions of the elected arms of government. In particular, it is important to recognise that parliamentary sovereignty is something different under the HR Act.
Another difficulty with the HR Act is the fact that Executive or legislative inertia favours the Executive and legislature, rather than the individual whose rights have been violated. This weakness is very important in the Australian context. In the UK, legislative inertia can, to an extent, be addressed by a European Court decision. This is not ideal because of the expense and time involved, and the failure to bring rights home, but it is available. This is not the case in Australia. Australia is not party to international human rights instruments under which the decisions of monitoring bodies are in any sense binding (Debeljak 2002: 291–293). Successive governments have used this to their advantage, in the sense of taking very little (in substance, no) notice of these decisions. If the question of whom should benefit from legislative inertia is to influence the precise dialogue model of an Australian Bill of Rights, the Charter should be preferred.
Finally, the HR Act poses multiple risks to the standing of the judiciary. This is no reason to reject a dialogue model for human rights protection, not the specific HR Act model. However, the risks must be acknowledged and monitored. These risks are less likely to be realised the greater the understanding of the nuances of the HR Act model. The judiciary must fulfil its mandated role. It should not too readily defer to the majoritarian views of the elected arms of government, because it is required to inject a non-majoritarian, impartial and principled perspective into the inter-institutional dialogue established under the HR Act. However, the HR Act clearly draws a line between legitimate judicial contributions to the dialogue via interpretation and illegitimate judicial contributions via legislating. The opaque line between the two must be navigated with care. Much of the success or failure of the HR Act depends on the perceived legitimacy of the judiciary. It is easy to undermine confidence in the judiciary with generalised allegations of illegitimate judicial legislating and judicial activism. Such sloganeering should be resisted and, when not, assessed according to underlying assumptions about the role of the judiciary, the validity of human rights protections, and the idiosyncratic approach to democracy encapsulated in the HR Act. l
References
International legal material
United Kingdom ‘Rights Brought Home: the Human Rights Bill’ Cm 3782 (1997) (Human Rights White Paper 1997)
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)
Ford v Quebec (Attorney-General) [1988] 2 SCR 712
Libman v Attorney General of Quebec (1998) 3 B.H.R.C 269
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Pepper v Hart [1993] AC 59
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Sunday Times v UK (1979) 2 EHRR 245
Dudgeon v UK [1981] ECHR 5; (1982) 4 EHRR 149
Young, James and Webster v UK (1982) 4 EHRR 38
Golder v UK 1 (1975) 1 EHRR 524
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Soering v UK [1989] ECHR 14; (1989) 11 EHRR 439
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Goodwin v UK (1996) 22 EHRR 123
Kla v Germany (1978) 2 EHRR 214
Artico v Italy (1981) 3 EHRR
Adolf v Austria (1982) 4 EHRR 315
Mathieu-Mohin and Clerfayt v Belgium (1988) 10 EHRR 1
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