After the incorporation of European Convention of Human Rights via the Human Rights Act 1998, there have been considerable critical commentaries written by academics, mostly observing on whether a right balance between protection of fundamental human rights and securing of national security or other social goals has been struck. Equally important issue is whether the courts have crossed the boundary imposed by HRA when exercising statutory interpretation.
Notwithstanding these analyses, the government seems to speak from a different hymn sheet by examining from a broader and pragmatic perspective which not only focuses on the facts of different cases. It is strongly criticized by ministers that the HRA 1998 has become a criminals’ charter while at the same time shuts the good people off helping others or carrying out their jobs properly for fear of being sued. For instance, employers now do not be determined to employ ethnic minorities for fear of being sued for unfair dismissal on ground of discrimination even if the decision is based solely on personal performance. Citizens’ awareness of human rights is feared to transform into an extravagantly litigious compensation culture. Furthermore, questionable decisions on criminal cases have led to a call for reform on criminal justice system and legal aid. These have strongly hindered government’s effort to tackle terrorism and legal aid issues.
It can thus be noticed that while assessing the impact of HRA 1998, legal theorists and political critics are coming from much different angles which is based on the doctrine of constitutionalism and parliamentary sovereignty on the one side and how the HRA is tied to the regulation of country on the other.
The HRA 1998 was originally passed with the aim to prevent any long and hard journey to Strasbourg, which creates excessive delay and cost, by making Convention Rights directly enforceable in domestic courts. According to the government’s White Paper ‘Rights Brought Home’, the accessibility of Convention Rights was granted with the doctrine of parliamentary sovereignty and separation of powers in mind. This can be perceived without difficulty from government’s effort to give courts power to interpret statute in line with Convention Rights (sections 2 and 3) while at the same time commits itself to legislate compatibly with Convention Rights (sections 10, 19 and 20).
From the observation on the catalogue of post-HRA cases, especially high-profile ones, the activist judges are now highly recognized superstars and new target of gazetteers both in legal world and political field, which perhaps override the gloss of the elected chamber that has given the United Kingdom recognition of human rights, although not an entrenched one, which has long been perceived to be out of question under British unwritten constitution.
Among the cases, in R v A (2000), the restrictions in s41 of the YJCEA 1999 was held by the House of Lords to be read with the test of admissibility – whether the evidence was so relevant to the issue of consent that to exclude it would be to endanger the fairness of the trial. In Re S (2002), s3 was used by the Court of Appeal in such a way as to create new guidelines for the operation of the Children Act 1989, namely courts’ increased discretion to establish ‘starred milestones’ within a child care’s plan. In Fitzpatrick v Sterling Housing Association Ltd (1999), the House of Lords included same sex partner within the deceased’s family while in Mendoza v Ghaidan (2002) the Court of Appeal read the words ‘as his or her wife or husband’ as meaning ‘as if they were his or her wife or husband’. Would Parliament have expected, while passing the HRA 1998, that the provision of Rent Act 1977 will be reread in such a way in a future case? In Secretary of State for the Home Department v AF (2009), the court suggested that the words ‘except where to do so would be incompatible with the right of the controlee to a fair trial’ can be read into the relevant paragraph of the Schedule to the Prevention of Terrorism Act 2005. Would the government have expected that extra words will be read into the Act in a future case? Certainly this kind of judicial boldness has not been anticipated by the government at the initial stage.
Lord Steyn in R v A has chosen to lay down the test of admissibility instead of an issuance of declaration of incompatibility. His approach has been sharply criticized to be inappropriate as he has ignored the clear and precise wordings of the statute but rather directed judges to use their own discretion to determine the test of the admissibility. It is argued by Thornton that the issue should be left to Parliament but not create difficult judicial guideline to the trial judges who will rule on similar cases in the future which has tuned the clock back to the Sexual Offences (Amendment) Act 1976 as amended by the Youth Justice and Criminal Evidence Act 1999.
Some have argued that instead of deciding cases in favour of government’s policy, the courts should give priority to the Convention Rights, as propounded by Lord Hoffman in Secretary of State for the Home Department v AF that a failure to follow the European jurisdiction, A v UK, would put Britain in breach of its international obligation which it had voluntarily accepted. However, should the judges not use the doctrine of proportionality robustly to defend the government’s policy? The judges’ extensive approach to follow European jurisdiction will certainly lead to the government’s legislating activity tied to foreign understanding on relationship between human rights and doctrine of constitutionalism, and in no doubt the European Court has not taken into account the United Kingdom’s peculiar constitutional arrangement – Parliament is supreme. Nevertheless, can it be argued that it is Parliament who voluntarily ties its hands to the Convention when it passed the Human Rights Act? Perhaps Parliament have not had contemplated such dynamic impact – as the European Court rules on cases according to present international social changes.
According to its White Paper, the government is of the view that while it is not possible to make a section Convention-compliant, the matter shall best left to the Parliament. However, this is not what in the mind of Lord Steyn who has elucidated the relation between s3 and s4 in a way that s4 should be the last resort while s3 can be used to linguistically strain the language of a section. Lord Facolner and Lord Irvine have had also commented that courts should strive to use s3 so far as possible that s4 should only be the last resort.
When deciding cases under the HRA 1998, should the pendulum of judiciary sways to the protection of the defendants’ human rights, the victims’ justice, the interest of the general public or the prosecution? Cases like R v A and Secretary of State for the Home Department v AF have shown that courts’ activism has obstructed the working of the relevant Acts and these Acts will be rendered meaningless if crime control measures are in no way to be put primary to due process rights by the judges. Judgments in these cases have shown that those on the bench have to a degree failed to appreciate government’s intention while passing the relevant Acts. Is judges’ understanding on the balance between government’s wish to give effect to Convention Rights and government’s intention to control crimes the same as how government possesses?
Lord Irvine, one of the major designers of the HRA 1998, ever argued that the 1998 Act would create a modern reconciliation of the inevitable tension between the Parliament’s right to exercise political power, which holds mandate, and the democratic need of individuals and minorities to have their human rights protected. The continuing defeat of government in legislation method strongly suggests that an individual’s case is sufficient to force the government to amend its legislation. In order to avoid this, the courts should not follow the European jurisprudence blindly but should at the same time appreciate the doctrine of proportionality and margin of appreciation by scrutinizing the triangulation of the human rights of the accused, the victims and the general interests of the society.
In contrast, decision in Bellinger v Bellinger and the recent case, R v Horncastle and Others (2009), have marked the courts’ willingness to refuse to follow European jurisprudence. While Lord Philips in Secretary of State for the Home Department v AF confined himself to reject closed evidence, he nevertheless in R v Horncastle and Others chose to recognize the use of hearsay evidence and intensely stressed that there will be ‘rare occasions’ where the courts be able to refuse to follow European jurisprudence when it had not sufficiently appreciate or accommodate particular aspects of domestic processes. Consequently, the exercise of pumping of Convention Rights into domestic law is dependent on the judiciary’s activism on a case to case basis. Accordingly, we can now only see the scattered principles of human rights that the depiction of full picture definitely falls in the judges’ hands. And it is unlikely that this picture will be completed one day as decision of human rights-related case is made on individual case which requires different axis on conflicting rights.
Apart from the above, it can however be argued that judicial exercise on Convention Rights and government’s response either critically condemn or make an amendment after a declaration of incompatibility by the judiciary can be viewed as a dialogue between the Parliament and the judiciary as described by Craven. The question is whether who is the stronger player? Despite members of Parliament’s comment about a ‘criminals’ charter’ that has been caused by judges’ failing to appreciate the doctrine of proportionality, similar cases still materialize. According to government’s paper, ‘Responding to Human Rights Judgments’, 15 out of 17 declarations of incompatibility have been remedied by the government. This shows that government is under invisible pressure to amend its legislations, although it reserves the right not to do so. An insidious growth of judiciary fuelled human rights culture is given birth, leading to the marginalization of Parliament (government amends their legislation in accordance with declaration of incompatibility) as feared by some. Drawing from this, is the HRA 1998 another incoming tide that cannot be held back?
Hence, it is true that the HRA 1998 is not used for the purpose intended by it proponent. There is now a consensus among Members of Parliament that the 1998 Act is not ‘fit for purpose’, either it is used unbalancingly or for the wrong purpose at least from the perspective of the government, albeit prisoners and celebrities are delighted. According to government’s paper, the HRA was meant to give effect to Convention Rights, however, the public perception is that it is entrenched and can be used vigorously to fight for their human rights. The Shadow Justice Secretary, Dominic Grieve, commented that the citizens are too optimistic in assuming that the Convention is here for keeps. Members of Parliament are calling for a reform of the HRA, perhaps a Bill of Rights, nevertheless, given that the United Kingdom remains one of the signatories of the Convention, it is possibly not practical to do so in reality.
Government seems not to be interested in whether the judiciary has stepped upon its tail, although it has been shown that there is a trend. Certainly, the compromise between parliamentary sovereignty and human rights embodied by the HRA is not always satisfactory from the point of view of either of them. The compromise reflects the relationship between the protection of human rights and the doctrine of constitutionalism. It is argued that the famous Diceyan theory on parliamentary sovereignty is no longer absolute. Perhaps, the statement held by Lord Irvine of Lairg that the Britain is a nation of pragmatists, but not theorists, which goes quite frankly with what works is to some extent perfectly correct.
In conclusion, we are now still sitting on a swaying boat which move unbalancingly on the onrushing ocean waves which sometimes run mountains high, we will not know where are we heading to and how picturesque the scenery of the destination be. It is totally dependent on how the sailors balance the ship and whether the captain follows the suggestions of the sailors. A tailor-made Bill of Rights, which allows the courts to develop indigenous jurisprudence on human rights rather than solving cases according to foreign yardstick, is not going to solve the present orthodox and conflict of interests, given the fact that a new enactment of Bill of Rights is difficult to reconcile with the existing protected Convention Rights and constituted case law based on it. It can only be assumed that the judiciary is gaining more power from the Parliament, especially so given by the creation of a new Supreme Court that is perceived by much that it will bring a radical change to the British Constitution, while the debate for a Bill of Rights is still hotly going on.
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