The flexible nature of the UK constitution has always created a major concern for Human Rights’ supporters. As Lord Wright wrote, “In the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has been evolved.” [The Business of Judging] Such an approach isolated British constitutional safeguards from the rest of the modern world where explicit mentioning of those rights was considered essential. Britain’s Lord Chancellor himself quoted, “The United Kingdom has traditionally adopted a negative approach to fundamental rights. This is based upon the principle of legality: the idea that the citizen enjoys the freedom to do as he or she pleases and that any interference with individual liberties must be justified by law.” [Texas International Law Journal]
The immediate question coming to mind, then, is what is so different with the British constitutional system? The constitution of United Kingdom is distinctive in many ways. It is an intricate set of laws and conventions evolved over centuries. Then the fact that it’s un-written, can be amended by a simple majority of parliament and contains legal as well as social rules makes it a really odd one as against every other constitution of the world. [Why Britain needs a written constitution].
Such a complex constitutional system puts an extra onus on the shoulders of stakeholders. It enhances the power of the court to not only interpret the law but also create the law. On the other hand it requires a check on the courts to ensure that they do not go too far in creating the law rather than only interpreting it. The British constitutional system understands the fundamental rule that there are no legal limits on Westminster’s ability to legislate. Under this rule the court has no authority to question the validity of legislation. It can interpret legislation but it can not negate it. The court’s power to create laws only exists in the absence of a clear rule.
Here, we are not concerned with other aspects of this constitutional principal but as far as Human Rights are concerned the UK had to move on as the world moved towards more explicit rules and procedures governing human rights. Naturally, the impact of the European Court on Human Rights (ECHR) was the most important for UK. There were heated debates over whether a Bill of Rights to incorporate EU regulations should be introduces in this regard. The supporters of this idea pleaded that common law was not providing sufficient safeguards for human liberty. They also pointed out that judicial system needed clear-cut guidelines for how to tackle human right issues. Others’ advocated that judges would use their narrow points-of-views in implementing such an Act. [A Bill of Rights for the UK?].
The support for a Bill of Rights prevailed and The Human Rights Act came into force on October 02, 2000. [Statutory Instrument 2000 No. 1851 (C. 47)] The rationale of the Act is to weave rights and freedoms guaranteed under the European Convention on Human Rights into the British Legal system. It is of paramount importance to understand that this Act is more of a guideline than a binding force in Britain.
The Act explicitly recognizes the principle of parliamentary sovereignty by declaring that, where a court decides that a legislative provision is not compatible with the Convention, “a declaration of incompatibility” may be made but it is then for Parliament to decide if the provision should be changed thus giving the final authority in the hands of the parliament than the courts. [Joint committee on Human Rights, Twenty-Ninth Report].
The Act does not even grant all the rights of the conventions to UK citizens. [Jurisdiction of the European Court on Human Rights: Exorbitance in reverse?] Infect, Article 1 of the ECHR convention- which imposes a duty on the states that have ratified the Convention to “secure to everyone within their jurisdiction the rights and freedoms “protected by the Convention- is not even incorporated as it would have undermined the supremacy of the parliament. Similarly, section 8 of the convention which limits remedies to cases involving public authority is not included in the Act nor is section 13 which gives a right to a remedy in unlimited terms. On the same note, Protocol 4 has not been included owing to a conflict between the British Nationality Act 1981 which denies entry to some UK nationals and Article 3 which covers rights of entry of nationals. [King’s Law Journal].
Section 2 requires that a court or tribunal must take into account the judgements, decisions, declarations or opinion of the European Court of Human Rights and the Commission but Section 3 requires, “so far as is possible to do so” both primary legislation and delegated legislation are to be read and give effect to in a way which is compatible with Convention right. This implies that if primary or subordinate legislation is irreconcilable with a Convention right and it is not possible to interpret the primary legislation to meet the demand of the ECHR, the existing domestic legislation remains in force. [House of Lords] The duty of the court is to take into consideration ECHR regulations but not necessarily act upon them. The beacon for British Courts is none but the parliament itself.
References
The Business of Judging by Thomas Henry Bingham, Web.
The human rights Act and the British Constitution by Vick, Douglas W, published in Texas international Law Journal.
Why Britain needs a written constitution by Lord Scarman.
A Bill of Rights for the UK? By Joint Committee of House of Lords & House of Commons on Human Rights.
The Human Rights Act 1998 (Commencement No. 2) Order 2000. Web.
Joint Committee on Human Rights, twenty-ninth report.
Jurisdiction of the European Court on Human Rights: Exorbitance in reverse? By Kavaldjieva, Stefka published in Georgetown Journal of International Law.
The slow death of citizenship rights by Satvinder Juss in King’s Law Journal.
Judgment by House of Lords published at [1999] 3 WLR 972. Web.