'The [Human Rights Act 1998] is in many ways an astonishing Act. It introduces vague [C]onvention rights ... into our law. It requires other statutes somehow to be read consistently with these vague rights, the working out of which requires domestic courts to make political judgments (about what is or is not proportionate, about what is justified in a free and democratic society) and implicates courts in political controversies about how rights should best be protected. In enacting the [Human Rights Act], Parliament was clearly willing to compromise existing constitutional principle to some extent.' (EKINS and GEE) To what extent do you consider these criticisms of the Human Rights Act 1998 to be warranted? [2019].
Whilst the Human Rights Act (HRA) has undoubtedly improvement aspects of the domestic law, it still received a plethora of criticism upon its enactment. Whilst academics such as John Spencer believe this hostility is due to “astonishing misunderstandings” of human rights in general, this essay will argue that, whilst the majority of the criticisms aforementioned are warranted, they are too narrow-minded as to the practical realities of the situation.
Upon dissection, the statement first concerns ‘vague rights’. Human rights are a contested concept, formulated at high levels of abstraction which can lead to broad rights with unclear scopes. For example, the Right to Life (Art 2) has several contentious subsections, including abortion, capital punishment and assisted suicide. It can be stretched even to provision of food and housing – what is a life, if its quality is disregarded? In contrast to common law rights, the Convention rights cannot be described as ‘vague’. The former, with its uncertain status regarding protection and content, are undeniably less specific than the ECHR which succinctly summarises rights and liberties, such as freedom of expression (Art 10). Whilst the rights may be ‘vague’, the Courts duty to interpret them remains paramount, as seen in Ghaidan v Godin-Mendoza [2004], thus providing a clearer understanding of them. Here, Lord Nicholls asserted that the duty to interpret legislation compatibly applied “even if there is no ambiguity in the legislation”. Therefore, whilst this criticism holds some truth, it is not entirely warranted.
Another criticism is that “domestic courts [are required to make] political judgments”. Lord Irvine expressed his concern, warning courts of the dangers of overreliance on either s3 or s4. He stated that judges would be “taking it upon themselves to rewrite legislation in order to render it consistent with the Convention, thereby excluding Parliament and the executive”. In Mendoza, Lord Nicholls concluded that s3 permitted the courts to read words into statutory texts in order to change its meaning, rendering it Convention-compliant. For some, manipulating statutory language as such symbolises a serious overstep by the courts, as it involves policy considerations and thus transgresses the line that distinguishes the courts role and Parliament’s legislative role. A further example is the Belmarsh (2004) case. The government derogated an absolute human right (Art 5 – right to liberty), but the courts gave them a wide margin of appreciation due to the circumstantial conditions following 9/11. Whilst the majority took a very deferential view towards the matter of whether a national emergency existed, Lord Hoffmann dissented and concluded it was within the courts’ powers to decide this– which could be seen as an inherently political judgment. Yet, the overall criticism is inaccurate, as the HRA has not adversely affected the separation of powers. In fact, it reflects the limits on the courts’ role by confining them to an interpretive rather than legislative role, demonstrated by the fact that the HRA does not authorise courts to strike down inconsistent legislation, thus ultimately leaving the existence of human rights dependent upon the executive and Parliament. The fact that declarations of incompatibility (DOI) under s4 have no legal effect means courts cannot overbearingly influence policy, but rather merely create political pressure. Moreover, as Kavanagh observed, they are a “measure of last resort”. The case of Nicklinson exemplifies the court’s refusal to be politicised. The majority were not prepared to issue a DOI, with Lord Mance stating that courts are “less well-equipped” than decision-makers to form those judgments. For them, sensitive issues such as suicide were better left to Parliament. This is a crystal-clear example of the courts refusing to make political judgments, and thus the criticism can be doubted.
A related criticism is that implication of courts in “political controversies”. On the one hand, this can be substantiated by politically controversial cases, such as Lee v Ashers Baking Co Ltd [2018], where Lady Hale concluded that a Christian bakers’ decision to refuse to bake a cake with the slogan ‘support gay marriage’ was not discrimination on the basis of sexual orientation, in line with the Fair Employment and Treatment (Northern Ireland) Order 1998. As aforementioned, the Belmarsh and Mendoza cases also represented politically contentious matters on which the court ruled on. Yet, whilst it is true that the HRA has propelled the shift from political to legal constitutionalism, it was not intended to alter the balance in the UK constitution, with orthodox principles such as Parliamentary sovereignty remaining unchanged. Furthermore, the idea that it is only the HRA making the courts engage in politically controversial material is flawed, as the courts have always asserted that they will not shy away from political issues, provided they are justiciable. This was most recently stated in Cherry/Miller II (2019), where courts asserted that something does not stop being a legal issue simply because it arises from a political controversy. Further cases such as Pinochet (2000) and GCHQ (1985) reinforce the fact that courts routinely engage in politically contentious issues, if they also be legal matters, and therefore the HRA is not the sole cause of this. Thus, whilst the criticism is warranted, it is blind to the general context of the courts operating in political controversial matters.
Finally, the statement contends that “Parliament was clearly willing to compromise existing constitutional principle to some extent” upon the enactment of the HRA. Constitutional principle can be defined as the underlying values at the core of our legal system and constitution, including the doctrine of Parliamentary sovereignty and the separation of powers. Since the “duty of national courts is to keep pace with the Strasbourg jurisprudence” (Lord Bingham, Ullah, 2004), it is understandable why critics believe constitutional principles are being disregarded. The mirror principle highlighted in Ullah demonstrates a potential obstruction to Parliamentary sovereignty with the s3(1) interpretative duty undoubtedly also impacting the doctrine. Dicey believed in the first place there was no need for any statement of fundamental rights operating as a kind of higher law. Trusting that political freedom was adequately protected by common law, he viewed an independent Parliament as a “watch dog against any excess zeal of the executive” (Elliott). On this view, the HRA certainly has limited the extent of Parliamentary sovereignty. Regarding the “clear willing[ness]” of Parliament to allow this echoes the “entirely voluntary” (Lord Bingham) acceptance of a limitation on their sovereignty in Factortame (1991). Yet, the criticism seems unfair, as constitutional principles have not been entirely compromised. The HRA recognises the unusually powerful position of the executive branch, and the interpretative power in s3 was designed to “maintain the constitutional status quo” (Elliott) by confining the courts’ role. It is easy to overestimate the significance of the HRA. There is no direct threat to Parliamentary sovereignty, as the HRA can readily be repealed. Furthermore, the courts’ power under s4, described as “vague in its terms” (Stark), is severely limited. They are not binding, meaning the ultimate lawmaking power remains in Westminster and “the existing rules of the constitutional game are preserved” (Palmer).
On balance, whilst many of the criticisms can be supported by concrete examples, on the whole they are not entirely warranted. They seem to adopt an overly hostile view of the HRA, and fail to consider the general development of the courts’ roles, such as the shift from political to legal constitutionalism, rendering the criticisms somewhat inaccurate. Therefore, they are warranted to an extent, but on the whole appear to fail to understand the complexities of the current climate in relation to the HRA.
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