#14667 - Incorporation Of The Human Rights Act - GDL Constitutional and Administrative Law

_______________________________________________________

Growing Dissatisfaction pre-HRA

UK was one of few Council of Europe members that had not incorporated ECHR into its domestic legal system, meaning it was not possible to rely on ECHR rights before UK domestic courts

This has a political context: the Thatcher government (1979-90) emphasised ‘law and order’ measures & the elective dictatorship of governments & was therefore adverse to codified civil liberties

Dissatisfaction born from executive dominance and the limited access to JR under traditional grounds, as two 1995 cases illustrate:

Smith v Grady

Prohibition of homosexual men serving in the army

Some of the soldiers made an application for judicial review:

• They used the traditional JR ground of unreasonableness

  • Did not accede to the high threshold of Wednesbury unreasonableness

• They argued that it was contrary to EU law (equal treatment for men & women)

  • Judged irrelevant

• They tried to rely on Art 8 ECHR

  • They judged that this provision hadn’t been translated into domestic law, though this was with regret

Held: (at first instance) found in favour of Minister of Defence, a decision which was upheld on appeal

Held: (ECtHR) the case won, forcing UK to change their policy with regards to sexual orientation in the military

Birdie v Sec of State for Home Affairs

• Per Lord Denning; it’s not just about going to the Convention for interpretation, but the courts will assume that Parliament could not legislate counter to the Convention and may even invalidate acts that run counter. (however he later went against this)

Translating ECHR

A number of private bills in the ‘70s sought to entrench an incorporation bill. However supranationalism is barred from the UK constitution.

Historical run-up:

• 1992: Labour loses 4^h general elections in a row

• New leader John Smith commits to supporting British Bill

• 1994: Tony Blair new Labour leader embraces domestication of ECHR

• 1997: Labour victory in general elections

White paper ‘Rights Brought Home: the Human Rights Bill’

• October 1997; Tony Blair’s Labour Government

• Incorporation of ECHR into UK domestic legislation

The package of reforms in play:

• HRA

• Devolution

• Freedom of Information Act

• HL reform

• Electoral system (FPTP) reform

• Reform of London local government

The pledge was to modernise British politics through constitutional reform.

• Francesca Klug: as a pledge for radical constitutional reform but also as a ‘formal’ commitment to ECHR incorporation - the natural progression of an international treaty that the government was already bound by

The case for incorporation:

• Lower costs

• No delays

• ECHR rights to become part of UK jurisprudence: that British judges may influence the flavour on the international scene, but also so that British judges may take into account national-specific contexts

• British judges to contribute to ECHR jurisprudence

• ECHR rights interpreted through UK law

• Reduce UK breaches of ECHR

The case against incorporation:

• Challenge to the doctrine of parliamentary sovereignty

• 70’s idea to bring in Convention rights as grounds for judicial review:

  • No horizontal effect

  • No obligation on Parliament

HRA 1998

• Draws on Canadian & NZ models

• S.2: ‘take into account’ i.e. that ECtHR jurisprudence is persuasive, not binding

• S.3: codifies the existing use of ECHR as a statutory interpretation tool. However it is also non-absolute, interpretation is ‘as far as it is possible’ & this limits its power.

  • S.3(2)(b): confirms that ECHR is not a threat to...