#16717 - Hra Protection Of Human Rights - Constitutional Law

HRA – Protection of human rights

[HRA overall effects]

1. Broad constitutional changes

   1. HRA punctures the distinction between legal and political constitutionalism by enabling national courts to invoke binding norms of international law as an effect constraint upon a legislative branch that is confined only by the force of politics

   2. Transforms SOP from a persuasive force, as in Fire Brigades Union, to a legally enforceable principle through Art. 6 ECHR – right to independent trial – e.g. Anderson

2. Emboldening the judiciary

   1. Has perhaps irrevocably changed the attitude of courts – empowering them to think they have free range to create their own inherent jurisdiction – changing relationship between courts and legislature – spillover outside direct effect

      1. Cited in run up to Jackson, where courts suggest it might overturn AoP if it threatens judicial review in Lord Hope’s dicta

      2. Use of extreme interpretive techniques in Evans v AG, Ahmed v HM Treasury – a novelty

3. Technical effects

   1. Makes enactment of ECHR-incompatible legislation more politically difficult & less likely in the first place

      1. S.19 requires P upon second reading of a Bill in HoC to make a declaration of compatibility, or refuse and pass it anyway – alerting P to the consequences of ECHR incompatible statutes, and raises the political stakes of enacting them

         1. Select committees scrutinize and check if government is making a right call, & joint committee on HR scrutinizes these declarations

      2. Generally adds to political impetus for P to not legislate contrary to ECHR – S.3/4

   2. Introduce formal means of correcting ECHR incompatible primary legislation, where there previously was none

      1. No common law equivalent of S.3/4, given doctrine of PS, a novel means of constraining P in protection of HR

   3. More stringent judicial review for executive actions

      1. Courts endowed with power to strike down any decision/delegated legislation where admin body is exercising discretion by S.6, where before, the principle of legality only applies where there is general or ambiguous words, and where limited common law rights are contravened

      2. Proportionality test replacing Wednesbury test of unreasonableness for standard of judicial review with respect to admin bodies contravening qualified convention rights

         1. More stringent test – not whether the decision is justifiable, but whether it is in fact the right one

   4. Spillover to other topics

      1. SOP

         1. S.6 shifts balance of power between executive & judiciary towards the latter – improves ability to exercise the check & balance function

         2. Art. 6 converts SOP into a legal doctrine in a limited way – protects courts having sole purview for judicial functions (Anderson)

      2. RoL

         1. Common law rights already cover grounds of formative RoL conception with respect to procedural rights & access to courts

         2. Improves substantive (Allan, Dworkin) RoL conception, by giving more substantive rights legal effect

            1. Art. 11 – Freedom of assembly and association

            2. Art. 8 – Right to privacy

            3. Art. 14 – Discrimination

      3. PS

         1. Unaffected. S.3-4 explicitly state the validity and continued operation of AoPs are untouched

4. General normative debate (Hickman)

   1. View 1: Incorporationists/ HR-focused

      1. Believes that HR should be put beyond the reach of parliamentary majorities – instead should be transformed into a form of higher law protected by judges

      2. DOIs should be rarely issued – use s.3 interpretative technique instead

      3. Problem: pushing the boundaries of S.3 interpretation threatens to violate appropriate relationship between courts and Parliament

      4. Fails to explain the dialogic features of the HRA and the relationship between protecting rights and preserving PS

   2. View 2: Participatory democracy/ dialogic perspective

      1. Believe that rights are far too controversial and important to be removed from people and entrusted to judges

      2. Tension between attributing people the autonomy and responsibility to bear rights while denying them the ability to decide amongst themselves what limits on their conduct this status entails

      3. HRA is viewed not as an institutional platform from removing issues FROM political debate but enabling courts to participate IN the debate – establishes dialogue between courts Parliament and executive

         1. S.5 HRA: notifying relevant government minister and hearing their view)

         2. S.4 DOI: HRA s.10 provides that DOI triggers an executive power for fast-track amendment – reconceptualises the SOP where the courts become repositioned within the forum of politics, providing not a check or balance, but counsel

      4. Problem: Sees HRA as a means to provide individuals with political participation rather than protection

   3. Middle ground: Strong form dialogue

      1. Protection aspect –

         1. Courts have a vital constitutional role in protecting fundamental principles from the sway of popular sentient [HR aspect]

      2. Dialogic aspect –

         1. Courts don’t exert these principles in isolation – they work in collaboration with other branches in evolving them and fostering their acceptance

      3. No rigid parcelling of policy to execs and principle to courts – there is overlap and exchange; but exchange is not conflation and courts insulate fundamental principles even in the face of such compromise!

      4. Dicey reconciles a judicial function in protecting society’s LT values with a supreme legislature mostly pursuing ST goals

         1. To understand this idea of constitutionalism not by examining which branch has the final word, but by looking at how they interact and collaborate

   4. How s.3 and s.4 fit into this:

      1. Erroneous to see s3 in terms of incorporationalism and s4 in terms of dialogue

         1. Ultimately depends on context, the proper limits of judicial law-making and the dictates of prudence

      2. S.3: relevant in determining the balance between giving legal effect to HR and allowing S.4 to be used

         1. Hence, s.3 should not be interpreted too minimally or maximally

      3. S.4: places court in an unfamiliar advisory position – but less strong position because DOIs can be ignored unlike s3 (need to be actively overridden in sufficiently clear, precise terms)

         1. But can be used to vent scorn on a piece of legislation and exclude it from the integrity of law in a dialogue with Parliament

      4. Bellinger –

         1. HoL appeared to indicate that it preferred to view its role, at least for this case, in terms of principle-proposing dialogue

         2. It lent its weight to the process of reform, but did not feel able to determine for itself the question of fundamental rights that was raised.

         3. In 2004 Parliament enacted legislation conferring legal rights, prospectively, on transsexual persons

      5. Re S

         1. Refusal to use s.4 DOI

            1. But court added bite to its words – made it clear that where local authorities went awry in the future (which was almost inevitable under the existing scheme), court could find specific violations of Art. 8

            2. Parliament responded with changes within the year

         2. Hence, dialogue is at the heart of the HRA but it does not centre around DOI/require a realignment of the SOP by transforming courts into mere advocates

         3. Resort to s.10 would have been particularly unwelcome, since it would have empowered the government to depart from the “cardinal feature” of the scheme that P had approved and enacted without recourse to primary legislation

            1. SOP concerns here!!! Avoid tilting balance in executive-Parl relationship towards executive for using fast-tracked means of amending statute

[Assessment of S.3]

1. Normative debate – how wide should it be construed?

   1. “Constitution of will”

      1. Perceives the constitutional landscape as a barren place, denuded of any rich set of inherent norms, dominated by intention of Parliament – courts’ primary responsibility is to find interpretation of legislation that best gives effect to that intention

      2. Hence, relatively narrow view of s3 adopted by adherents of the constitution of will

      3. Marshall argues that a wide conception would be potentially damaging to both the authority of P and separation of judicial and legislative functions

   2. “Constitution of reason” (Allan’s view)

      1. Guiding principle being that people should be treated by government in accordance to standards of fairness or justice fundamental to political morality

      2. Constitutional landscape not a barren one dominated by parliamentary intention, but one that, independently of HRA, is sympathetic to norms underpinning HR

      3. Supported by doctrine of common law constitutional rights emerging before HRA

      4. “HRA was planted in fertile ground”

      5. Adherents to this view tend to be comfortable with a wide reading of S.3 – consistent with courts’ supposedly proper role – primary responsibility is to protect constitutional values, including HR. Intention of parliament is important but not decisive

      6. Preferred the HoL to have gone further than it did in Anderson

2. Very limited SOP concerns

   1. Premises

      1. S.3 must allow courts to interpret in contravention of P’s intent. If parliamentary intention does not conflict with convention rights, not within scope of HRA; if s.3 cannot be used to contravene P’s intent, courts would go straight to s.(4) every time – effectively reading s3 out of the act

         1. Ghaidan – May even require the court to “depart from the intention of the Parliament which enacted the legislation”

   2. Usurping legislative function

      1. Bellinger – S.3 is in effect a minor amendment power, in a limited sense

      2. By exercising a legislative function with respect to AoPs, courts are exercising a law-making power that should remain in sole purview of P – not equipped to do by Barber’s test of suitability of the institution to the task

      3. Commentators...