Human rights Act (1998) and its impact on check-and-balance mechanism in British politics

1. Introduction
In the late 1990's, some commentators argued that the introduction of the Human Rights Act (HRA) would tilt the delicate balance of power between the three main branches in the British political system lopsidedly in favor of the judiciary. Michael Howard, the former Home Secretary of the Conservative government, was famous for bearing a grudge against the HRA. According to Howard, the HRA 'involves a significant transfer of power from Parliament to the judges that it constitutes a profound weakening of our accountable democratic traditions. (1) Taking a broader perspective, Lord Donaldson argued that Parliament's right to govern should not be curtailed by Strasbourg. (2) It is really a moot point whether the judiciary will turn the declaration of incompatibility into a 'legal Trojan horse' to undermine the foundation of parliamentary sovereignty. Another worry is that the public institutions in the United Kingdom (UK) have to concern themselves as much with the practical problems of policy formulation and implementation as with the need to make their actions compatible with Convention rights in the post-HRA period. In view of the above worries, I will attempt to examine the effect of the HRA on the check-and-balance mechanism in British politics in the following paragraphs.

2. HRA and the legislative supremacy of Parliament
Contrary to Howard's prediction, Parliament's Supremacy remains intact in the post-HRA period because the HRA falls short of conferring a judicial power to set aside incompatible legislation. Unable to declare any law invalid as being in conflict with the Convention, the courts are not equipped with any power to shake parliamentary supremacy to the core. Section 4(6) states that:
'A declaration under this section ('a declaration of incompatibility')-
(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made'(3)
It is also worthy of note that Section 3 of the HRA places the courts under a strong interpretative obligation to ensure the conformity of primary legislation with the Convention even if there is no ambiguity in the language of the statute. (4)

However, political reality exerts pressure on the Parliament to respond positively to the right-based challenges posed by the judiciary. Firstly, parliamentary inertia may adversely affect European solidarity. Secondly, the two major parties in the UK are sensitive to the right-based culture of their country. Although the above pressure cannot pose a direct challenge to parliamentary supremacy, it inevitably redefines the check-and-balance mechanism in British politics and allows the strictly defined interpretative power of the courts to take on a new coloration. In R(Anderson) v Home Secretary (2002) the House of Lords made a declaration of incompatibility in relation to the ability of the Home Secretary to decide the minimum period of incarceration for a murderer. It was concluded that this was a breach of Article 6 of the Convention- it did not provide for a fair trial because such a decision should be made by an independent and impartial tribunal established by law and not a politician. The law has now been changed by the introduction of the Criminal Justice Act of 2003. (5)

The above case demonstrates that the declaration of incompatibility is not a political irrelevance. Following the declaration, the relevant minister will come under pressure to exercise his powers under Section 10 of the HRA to make a remedial order amending the offending legislation, so as to remove the incompatibility and ensure the UK's compliance with the requirements of European Convention on Human Rights (ECHR). (6) Furthermore, Section 19 of the HRA requires a Minister in charge of a Bill to make a statement of compatibility prior to the Bill's second reading. (7)

Although the courts cannot strike down Acts of Parliament, they are given additional power over delegated legislation by the HRA. Before the introduction of the HRA, there were a number of well-known examples of subordinate legislation being struck down for want of any clear enabling provision in the area of taxation, where the courts have traditionally adopted a restrictive approach. In order to understand the additional power of the courts in the post-HRA period, I would like to focus on Section 3 of the HRA. Section 3(2) provides that Section 3(1) does not affect the validity of any primary legislation, nor of delegated legislation made under a parent Act containing a provision to that effect. (8) In reality, it is uncommon for the parent Act to stipulate that the courts do not have power to invalidate a piece of secondary legislation. Therefore, the above power creates a perception that the validity of delegated legislation depends on the court's interpretation of its compatibility with the Convention. (9)

3. HRA and judicial review: a scrutiny into public authorities' action
Traditionally, the principle of ministerial responsibility governs the interlocking power relations between the government and Parliament. This convention allows the Parliament to act as an effective counterweight to the executive. But the judiciary cannot check the power of the executive in a similar manner. With the passing of the HRA, the courts can scrutinize the actions of any public authority. Unlike the mixed identities of some Members of Parliament, the independent status of judges allows them to run the 'screening machine' in a more impartial manner. Some sections of the HRA offer insight into the operation of the 'screening machine'. Section 6 of the HRA makes it unlawful for any public authority (except Parliament itself) to act in a way that is incompatible with a Convention right. (10) It is worth noting that this section expressly includes courts and tribunals within the term 'public authorities'. Because the courts have to apply such rights in purely private actions, the Act may well in practice have horizontal effect too. Section 7 deals with an individual's right to commence proceedings. Any victim of the above-mentioned unlawful act can bring judicial review proceedings in the courts or rely on the Convention right in any legal proceedings he is involved in, for example, by using the right as a defense in criminal proceedings. Only where the public body is required by legislation to act as it did would its action be safe from challenge. (11)

Section 8 of the HRA deals with judicial remedies in relation to breach of Convention rights. If a court finds in favor of the individual or organization alleging a breach of ECHR rights, it may provide such remedies as would normally lie within its powers. In Regina (KB) v Mental Health Review Tribunal (2003), the court concluded that patients had not had sufficiently speedy hearings and were thus entitled to damages. The level of damages the court concluded had to be equal to those for the comparable tort. (12) But the HRA does not create any new 'constitutional tort', giving rise to a new right to damages. (13)

4. Conclusion
Although the HRA does not upset the balance of power between the three main branches of government, it has, to a certain extent, strengthened the check-and-balance mechanism in British politics. As mentioned earlier, Parliament's Supremacy remains intact in the post-HRA period. But the government would find it very hard to stand by legislation found by the judiciary to be incompatible with the nearest statement the British have to a Bill of Rights. This political relationship is recognized by Section 10 of the HRA that effectively provides for the immediate amendment of offending legislation by an executive act without the need for immediate parliamentary action. To counterbalance the power of the executive, Section 6(1) of the HRA creates a new 'head' of ultra vires as regards application for judicial review of public bodies. (14) As a result, the HRA places the onus on public bodies to comply with ECHR.

The End October 2006

Notes
1. Geoffrey Rivlin, First steps in the law (Oxford: OUP, 2002), p. 271.
2. Michael Molan, Constitutional law: the machinery of government (London: Old Bailey Press, 2003), p. 310.
3. Greer Hogan & Rhona Smith, Core statutes on Public law & human rights, 2005/2006 (Exeter: Law Matters Publishing, 2005), p. 168.
4. Ibid., p. 167.
5. J. Coles & J. Reynolds, Constitutional & administrative law (United Kingdom: Hodder Arnold, 2006),p. 104-105.
6. P. D. Jones (ed.), Public law (United Kingdom: ILEX Tutorial College, 2006),p. 174.
7. Ibid., p. 175.
8. Ian Mcleod, Legal method (New York: Palgrave Macmillan, 2005),p. 96.
9. H. Barnett, Constitutional & administrative law (London: Cavendish Publishing Limited, 2003), p. 630.
10. Greer Hogan & Rhona Smith, op.cit., p.169.
11. Greer Hogan, Nutshells Constitutional and administrative law (London: Sweet & Maxwell, 2002), p. 7.
12. J. Coles & J. Reynolds, op.cit., p. 107-108.
13. P. D. Jones, op.cit., p. 177.
14. Michael Molan, op.cit., p.327.