European convention on human rights legislation
Critically Evaluate The Impact Of Sections 3 And 4 Of The Human Rights Act 1998 In England And Wales.
The Human Rights Act 1998 was the incorporation of the European Convention on Human Rights into UK domestic law and it has had a substantial impact on the legal system which shall be discussed below. Sections 3 and 4 of this Act are of supreme importance as they provide the framework to ensure that all legislation is construed in accordance with the Convention Protocols, and also situations where compatibility is not possible, legislators are informed so changes can be made by parliament. It has been stated however, “The effectiveness of the Human Rights Act 1998 rests on three foundations: the willingness of the judges robustly to defend rights and to interpret Convention rights in a manner favouring individual protection against governmental encroachment; parliament's willingness to amend the law to ensure compliance with declarations of incompatibility with Convention rights; and finally, the energy with which individual citizens are prepared to assert their rights in courts of law” Now a critique of the impact of sections 3 and 4 shall be attempted.
Impact Of Section 3
In order to effectively analyse the impact of section 3, it is necessary to understand precisely what the section provides. It relates to the interpretation of legislation, stating, “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This section applies both to primary legislation and subordinate secondary legislation, however it does not affect the validity, or continuing operation and enforcement of any incompatible primary legislation. It is important to realise that Convention rights do not according to section 3(2), “affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility” One of the important impacts of this duty of the courts under this section, is that judges have increasingly adopted an approach similar to the European Court of Human Rights and employ concepts such as necessity and proportionality; this results according to Carroll A (2007) at page 209 “gives greater scope for the protection of rights than the conventional concepts employed in judicial review, under the umbrella of the Wednesbury unreasonableness test, which spans ‘illegality, impropriety and procedural irregularity”
The House of Lords in the case of R v A (Complainant's Sexual History)  2 WLR 459 set out the procedure which must be adopted when dealing with situations where this section is relevant. The courts are required to consider if a convention right has been infringed by a legislative provision and if so, must employ the concept of proportionality. Lord Steyn in the case of R v Ashworth Special Hospital Authority ex parte N  2 WLR 209 stated at paragraph 359 that the courts ultimate responsibility to interpret legislation in line with Convention rights, “might even require them to adopt an interpretation which may appear linguistically strained.” The impact of this section is clearly limited to actions that occurred after the passing of the Act itself as the case law points out its provisions are not retrospective. This interpretation can be clearly demonstrated by the case of R v Kensal (No. 2)  UKHL 62, in this instance the courts declared if parliament had wanted retrospective effect they would have clearly stated this in the provisions of section 3. this approach was supported in the case of Pearce v Governing Body of Mayfield School  2 All ER 45, in this instance the Act was not in force at the time of the conduct in question and so could not be relied upon. Finally, the case of Secretary of State for the Home Department v Wainwright  All ER 45, involving a violation of a person's privacy was decided similarly. In this instance, according to page 305 of McEldowney JF (2002) “The Lord Chief Justice stated that the 1998 Act could not change substantive law by introducing a retrospective right to privacy which did not exist in common law.”
A second important limitation of the impact of this section, lies in the important distinction between the courts legitimate interpretation of statutes in line with the Act and an effective redrafting of statute. To explain this issue, it is necessary to look closely at the case of Re W and B (Children Care Plan)  2 AC 734, a case which considered the impact of this interpretative duty in relation to a local authority's duties under the Children Act 1989. The argument was raised that the local authority should be required to perform a service not advocated by the Children Act, given the effect of the Human Rights Act. In this particular situation according to page 528 of Barnett H (2004) “The House of Lords ruled that the Court of Appeal's interpretation went beyond the boundary of interpretation and exceeded its judicial jurisdiction.” Barnett H (2004) went on to say “Although the line between legislating and interpreting may appear to be fine, it is nevertheless understood by the judges.”
The area of the law where this section of the Act has had greatest impact is that of a person's right to privacy; a right not present in common law according to Glidewell LJ in Kaye v Robertson  FSR 62. However, the courts are now prepared according to the precedent set in Venables v News Group Newspapers Ltd  1 All ER 908 to enforce such a right. In this case, the courts granted an indefinite injunction to prevent the media from disclosing the identities of two ex criminals. In this instance Cane P (2008) asserts, “Buttler Sloss LJ recognised that the defendant newspapers were not within the definition of public authorities, but nevertheless asserted that the court - as a public authority - must itself act compatibly with the convention”.
Impact Of Section 4
In its White Paper, the government stated the new Act “was intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it.” However, as the case of R v Secretary of State for the Home Department ex parte Simms  2 WLR 884 it is clear that the courts seem to be “developing the concept of the ‘constitutional statute', one consequence of which is that the doctrine of implied repeal does not operate and only an express intention to amend or repeal the Act will have any effect.” The section states that the courts should in any proceedings in which they determine a provision of primary legislation is compatible with a Convention right, endeavour to interpret the legislation in line with those rights. However, according to section 4(2), “If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” Under the Act, the courts that have jurisdiction to make such declarations are as follows: House of Lords, Judicial Committee of the Privy Council, High Court and the Court of Appeal. The impact of the Act is made less so by the provisions contained within section 4(6), namely “A declaration under this section (“a declaration of incompatibility”) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and is not binding on the parties to the proceedings in which it is made.” It needs to be remembered that the power to amend the law is left to parliament under the terms of this section and so on the face of it the separation of powers is preserved. However, the idea behind the provision is that the government is placed on notice that the legislative term is not in accordance with the Act and should be amended. There is another limitation on the impact of this section of the Act, which was exposed by the seminal case of Wilson v First County Trust Ltd (No.2)  3 WLR 568. In this case it was held that the courts do not have the authority under section 4 to declare unless the interpretative duty under section 3 had been engaged; therefore it could not operate on actions which occurred prior to the enactment of the Human Rights Act.
A number of cases since the inception of the Act, have demonstrated its impact on the English legal system and some of these shall now be discussed. The seminal case of R (Anderson) v Secretary of State for the home Department  UKHL 46 involved the power of the Home Secretary to determine the term of imprisonment required for a person convicted of murder. In this case according to page 566 of Cane P (2008) “The House of Lords made a declaration under section 4 of the Human Rights act 1998 that section 29 of the Crime (Sentences) Act 1997, which conferred on the Home Secretary control of the release of mandatory life sentence prisoners, was incompatible with the right under Article 6 to have a sentence imposed by an independent and impartial tribunal.” It is also important to understand that the courts now according to Lord Bingham in the case of Stafford v The United Kingdom  UKHL 390 at paragraph 40 “would not without good reason depart from the principle laid down in a carefully considered judgment of the European court of Human Rights sitting as a grand chamber.” The impact of this section of the Act can be best seen however in the case of International Transport Roth GmbH v Secretary of State for the Home Department  EWCA civ 158. In the judgment of this case, the courts made a declaration of incompatibility over the issue of carriers' liability for the transportation of illegal immigrants which resulted in a change of the law. In a similar vein, the courts declaration of incompatibility in case of Bellinger v Bellinger  UKHL 45 resulted in the Gender Recognition Act 2004 being enacted into the laws of the UK.
The impact of the Human Rights Act and in particular sections 3 and 4 has not been as marked as was expected, however it has resulted in a number of seminal judgments as in the Venables case, and in a number of legislative alterations as in the case of the Gender Recognition Act 2004. However, the number of declarations of incompatibility has remained relatively low and this can be attributed to the non-retrospective affect of the provisions and the courts unwillingness to make such a declaration in a situation where it feels according to page 530 of Barnett H (2004) “defects in procedures can be resolved by the inherent supervisory jurisdiction of the courts”
Constitutional and Administrative Law (Fifth edition) Cavendish Publishing, London 2004
Wade W (2004) Administrative Law (Ninth edition) Oxford University Press, Oxford 2004
Cane P (2008) An Introduction to Administrative Law Oxford University Press Oxford, 2008
McEldowney JF (2002) Public Law (Third Edition) Tottel Publishing, London, 2002
Carroll A (2007) Constitutional and Administrative Law (Fourth Edition) Cambridge University Press, London, 2007
Halsbury's Laws of England and Wales: Administrative Law (Volume 1(1) 2001 Reissue www.lexisnexis.com
(Accessed on 20/12/09)
Human Rights Act 1998 c42 HMSO 2000
Children Act 1989 c 56 HMSO 1989
White Paper, Rights Brought Home: The Human Rights Bill, Cm 3782 1997 London HMSO
R v A (Complainant's Sexual History)  2 WLR 459
R v Ashworth Special Hospital Authority ex parte N  2 WLR 209
R v Kensal (No. 2)  UKHL 62
Pearce v Governing Body of Mayfield School  2 All ER 45
Secretary of State for the Home Department v Wainwright  All ER 45
Re W and B (Children Care Plan)  2 AC 734
R v Secretary of State for the Home Department ex parte Simms  2 WLR 884
Wilson v First County Trust Ltd (No.2)  3 WLR 568
Venables v News Group Newspapers Ltd  1 All ER 908
Kaye v Robertson  FSR 62
R (Anderson) v Secretary of State for the home Department  UKHL 46
Stafford v The United Kingdom  UKHL 390
Bellinger v Bellinger  UKHL 45