Parliamentary Sovereignty and Human Rights Act

Since Bill of Rights, the biggest change in the UK law has appreciated to be the Human Rights Act 1998 which was a written law into an unwritten democratic system. Notwithstanding, the UK was the first State who signed the Convention, the rights of which were not binding in British courts as the Parliamentary Sovereignty gives to the judges the comprehension to make law. Paradoxically, the Parliamentary Sovereignty did not contravened by the HRA [2] as it does not affect the gravity of an Act, howbeit it enhances the powers of the judiciary and that affect in a great extent the symmetry of power between Parliament and Courts. As GC & C v Commissioner of Police of the Metropolis [3] has shown, the court in some cases could not be compatible with the Convention rights and in that instant it may make a declaration of incompatibility.

The fundamental aspiration of the HRA [4] is, “to give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights”. [5] These rights are approachable by the individuals in UK as they used in domestic courts, according to R (Al-Skeini) v Secretary of State for Defence [6] . This Act encouraged the rights of the Convention, which abided by English Courts only when the law is not incontrovertible, to utilize in domestic law as stated in R (Begum) v Head Teacher and Governors of Denbigh High School [7] . As the ECHR is a crucial international treaty, which has an engagement, the protection of Human Rights and Fundamental Freedoms, in order to apprehend the tyranny and inhumanity and provide to individuals arch protection, its decisions must be cogitated by UK courts. The Convention Rights must be adapted by the UK legislation and public bodies, exclude Parliament, must react in a respectable way with them.

In GC & C v Commissioner of Police of the Metropolis [8] the appellants GC & C sued the defendant, denoting that their rights under Article 8 of the ECHR have been infringed by the continued detention of the DNA, fingerprints and a photograph of GC and in respect of C, the retention of DNA, fingerprints and information on the Police National Computer. In consonance with Article 8, everyone has the right to respect for his private life and there shall be no interference by a public authority with the operation of this right. It is possible to happen only in exceptional cases, where is required by law in order to protect morals or health or the rights and freedoms of others. In S and Marper v United Kingdom [9] the ECtHR held that the retention of biometric samples of individuals in UK, who apprehended and then acquitted, resulted to transgression with Article 8 rights.

Antithetically, the judges according to the decision of the House of Lords in R (Marper) v Chief Constable of South Yorkshire Police [10] unanimously held that the withholding of biometric samples did not entrench the rights of the applicants which are enshrined in Article 8. Lord Steyn said: “in respect of retained fingerprints and samples article 8(1) is not engaged” [11] . Additionally, according to Lord Steyn in Marper, the judges held that there is not breach of article 14 as article 8 (1) is not engaged. According to article 14, the wording “other status” includes things such as sex, religion, colour and race which are not relevant with biometric samples. Hence, in agreement with his conclusion, article 8(1) did not execute in accordance with fingerprints and DNA. Pursuant to the doctrine of “precedent”, this particular case is binding by the decision of Marper, as any eminent legal point which mention in previous cases, is appraised as binding in later cases.

Supplementary to this, in Malone v Metropolitan Police Commissioner [12] , the European Court of Human Rights held that the tapping of the phone did not breach article 8, as it was not property, and ruled that English Court was insufficiently grounded to its decision under article 8(2). Consequently, in the case of Gc, the taking of photographs does not energize the utilization of article 8, as the Commissioner cannot demonstrate the justification.

Indubitably, an Act of Parliament has the adroitness to dispatch any previous legislation, as is the supreme legal authority of the UK constitution. According to Dicey, Parliament has the right to make or unmake any law and no one has the right to invalidate any legislation which established by Parliament. Consequently, the principle of Parliamentary Supremacy subsidizes Parliament with the endless ability to make any kind of law and their lawfulness cannot be criticized by anyone. Additionally, an earlier statute cannot demarcate Parliament. However, the doctrine of “implied repeal” makes it accessible for the courts to revoke earlier legislation. An enlighten example is section 3 of the HRA. In line with Ghaidan v Godin-Mendoza [13] , under section 3 [14] , all legislation must be befitting, “so far as it is possible to do so”, with the Convention rights. Thereupon, it is possible for the courts, under s.3, to interpret legislation and thus the intention of the Parliament which formulated it.

Proportionately, in GC & C v Commissioner of the Police of the Metropolis [15] , the adjustment of the judges to espouse the policy of precedent, as it had mentioned in Marper [16] , conflict the decision of the European Court of Human Rights in Strasbourg, that the retention of biometric samples contravene with article 8 rights. Undoubtedly, the validity and the effectiveness of Parliament legislation remain, as Parliament it is considered as the legal authority of the UK constitution. Contradictorily, according to section 4 [17] , the Higher Courts have the ability to execute a declaration when the adjustment of the judges is not reconcilable with the Convention rights. As reported by Lord Steyn in Ghaidan “interpretation under s.3(1) is the prime remedial remedy and that resort to s.4 must always be an exceptional course.” [18] The target of the declaration of incompatibility is to acquaint that UK is in breach with the Convention rights, thus the Government and the Parliament have to decide what to do with this situation and this must be accepted by both Houses of Parliament.

Ultimately, the UK as it is obvious, supervises the Human Rights and the freedoms of the individuals by declaring the interpretation of legislation and making it compatible with the decisions which have been acknowledged in Strasbourg under the ECHR. As in UK there is a democratic system, laws must be made only by representatives which are elected, according to the doctrine of Parliamentary Supremacy, the validity of the legislation does not criticized but it can comply with the ECHR.