Rights-consistent interpretation and the Human Rights Act 1998

The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges’ of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.

Social Science Research Network, 2020

As a working paper, it reflects on the interplay between the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) as human rights laws protecting human rights in the UK. It is centred on the premise that the interplay is one of a relationship between international law and domestic law, specifically the implementation of international law via a domestic statute

A general discussion of the impact of the HRA 1998 on Judicial Review in England and Wales. This was written as a piece of Researched Coursework for the GDL and received a distinction.

International Journal of Constitutional Law, 2006

The United Kingdom has overcome its historic antipathy to a domestic bill of rights. Its recently adopted Human Rights Act (HRA) is distinctly different from the world's best-known rights instrument, the United States Bill of Rights. Faced with inherent doubts about the desirability of abandoning the principle of parliamentary sovereignty in favor of judicial supremacy, and with mounting international and domestic pressures to articulate rights for the purposes of constraining state actions, the United Kingdom incorporated the European Convention on Human Rights into domestic law. But in so doing, it has developed an innovative approach to protecting rights. This model makes a key assumption-that rights will be protected not simply through after-the-fact evaluations by courts but by establishing opportunities and obligations for rights review by ministers, parliamentarians, and public authorities that are distinct from, and prior to, judicial review. The paper assesses the HRA's early effects on political behavior and focuses on the work of the recently created Joint Committee on Human Rights, which plays a pivotal role in ensuring that the government explains and justifies proposed legislation in terms of its consistency with rights.

2014

This article challenges the dichotomy often proposed by the scholarship and jurisprudence between the rights guaranteed in the European Convention on Human Rights [ECHR] and those claimants can rely on under the Human Rights Act 1998 [HRA]. It discusses the two contentions informing this approach, namely the autonomy of meaning of HRA “Convention Rights” and the authority of domestic courts to interpret ECHR provisions. The author relies on the effects of incorporation of treaty norms into municipal law, in the light of the statutory language, preparatory works, and the presumption of Parliament’s intent to comply with international obligations, as well as on treaty law principles, with particular regard to the interpretive competence of treaty-based monitoring organs. The experience of the domestic approach to the jurisprudence of the Court of Justice of the European Union serves as a comparator to support a reading of the HRA consistent with constitutional and international law.

Universal Civil Jurisdiction, 2020

The European Convention Human Rights system, despite being the most effective system in providing individual protection of civil and political rights, is currently facing numerous problems. One of the biggest problems is the European Court of Human Rights overload. The expansion of the Court's caseload can be attributed to a combination of several factors one of which is the extensive judicial interpretation of Convention rights to a variety of claims, which at the inception of the system states were not initially intent upon addressing. As a human rights treaty where numerous provisions have been drafted with a lack of precision the Convention is subject to interpretation that is done by the Court since the judges have to interpret and define law in concrete situations, and not just apply it. For that reason the Court has developed numerous principles of interpretation of the Convention and this paper looks at the most important ones. The interpretative principles of the Court can be divided in two groups, related to the direction in which the judicial creativity led. The first group represents judicial self-restraint principles of interpretation where the judges used one of the four following principles: intentionalism, textualism, margin of appreciation or the doctrine of fourth instance. On the other side, the judicial activist methods of interpretation, as used by the judges' of the Court are the living instrument doctrine or evolutive interpretation, the doctrine of effectiveness or innovative interpretation, and the doctrine of an autonomous concept. This paper will look at all those principles as well as at the negative consequences of the inconsistency of their use.

Constitutional and Comparative Perspectives, 2013

The notion that the protections afforded by domestic courts pursuant to the Human Rights Act should ‘mirror’ the rights enforced by the European Court of Human Rights has been a recurring feature of judicial discussions on the nature and extent of the ‘Convention rights’ in domestic law, and has exercised a powerful influence over how those rights have been given legal effect. This chapter argues that the mirror principle is based on an overly narrow interpretation of the purpose of the Human Rights Act, provides an inadequate foundation for the development of domestic rights jurisprudence, and is an increasingly inaccurate description of judicial and constitutional practice.

2016

University of Toronto Law Journal, 2012

The UK Human Rights Act 1998 (HRA) gives UK courts enhanced interpretive powers under which they are required to construe domestic legislation, if possible, so that it that conforms to the European Convention on Human Rights. Building on interpretive techniques and values inherited from common law constitutionalism, the courts conduct review under the HRA with sensitivity to the legal and institutional contexts in which the impugned decision was made. This is the core of contextual constitutionalism, a constitutional theory that explains review under the HRA. In separate engaging books, Constitutional Review under the Human Rights Act and Public Law after the Human Rights Act, Aileen Kavanagh and Tom Hickman provide insightful commentary on jurisprudence arising from the HRA. Kavanagh focuses on the tension between popular democracy and minority rights protection, while Hickman discusses the way the HRA has reshaped UK public law. This review suggests that both authors are committed to contextual constitutionalism. The authors’ discussions of two related doctrines -- the separation of powers and judicial deference -- reveal their commitment to the theory. If their books share a weakness, it is a reluctance to explain clearly the relationship between human rights and legality.

We currently witness protests from many national parliaments against decisions and practices by regional human right courts and the UN human rights treaty bodies. This emerging international human rights judiciary (IHRJ) is said to threaten national democratic processes and 'hollow out' the scope of domestic, democratic decision-making. Against this backlash, it is striking that domestic parliaments have a key role in holding state authorities to their international human rights based obligations. They interpret and apply human rights in the laws they make, and when holding the executive to account. Parliaments often fail in these tasks, with implications for the individuals whose rights are infringed – and burdening the IHRJ with cases. If progress is to be made, capacity and awareness must increase amongst parliamentarians at the domestic level. Thus argue international parliamentary bodies, such as the Parliamentary Assembly of the Council of Europe (PACE) and the Inter-Parliamentary Union (IPU). The present book confronts the backlash head on, by examining the human rights role of national parliaments and insisting that the international human rights judiciary may advance the efforts of parliaments. The book identifies and analyses opportunities and challenges for developing how the IHRJ relates to national parliaments. Taking Europe and the European Court of Human Rights (ECtHR) as its main focus, and drawing on theory, doctrine, and practice from a range of perspectives, the contributing authors reflect on a series of key issues: - What should be the role of parliaments to realise human rights? - Which factors influence the effects of the IHRJ on national parliaments' efforts? - How can the IHRJ adjust its influence on parliamentary process? - What triggers backlash against the IHRJ from parliaments, and when? - In an environment of increasing scepticism about supranational rights adjudication, how might greater parliamentary engagement in the interpretation and application of human rights law enhance the effectiveness and democratic legitimacy of the IHRJ? This chapter provides the background and analytical framework for the book, through an account of the research problem in relation to on-going scholarly and policy debates to which the book contributes. An indication of the contents of the individual chapters is also provided.

2017

The preamble of the European Convention of Human Rights provides ‘on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend.’ In using the judicial tool of the ‘margin of appreciation’, nowhere mentioned in the text of the Convention, along with deference, subsidiarity and proportionality, the court has claimed to balance the democratic mandate of member States against protections offered to individuals. Proportionality is a judicial tool that balances potential breaches of Convention rights, against the need for a measure to be adopted ‘necessary to a democratic society’. However, it is contended that the Court, in its recent case law, offers a restrictive interpretation of Convention rights. In attaching significant weight to the national legislature, Strasbourg leaves itself open to the charge of being too politically sensitive to the requirements of the state. In doing so, it has ignored the international interpretative legal obligation, as laid down in Golder v United Kingdom: which held that Strasbourg interpret rights taking into account the Conventions ordinary meaning within the framework of its object and purpose, as principles laid down in Article 31 of the Vienna Convention on the Law of Treaties VCLT. This paper contends that Strasbourg has in its recent jurisprudence, adopted a methodology within moral reasoning, by attaching a heavy deontological weight to the legislature. The result being, that the object and purpose of the human rights treaty has become displaced. The character of the ECHR, being a human rights treaty, means at the very least the Court should construe rights in favour of the individual if they come into conflict with issues of sovereignty. International treaty interpretation rules under the Vienna Convention on the Law of Treaties requires a more holistic approach be adopted by the ECtHR, in line with good faith. Instead, Strasbourg has offset the preamble of the Convention against its object and purpose.

1994

Added to that, there is an apparent paradox in the picture that first comes out of a listing of the case books as it may make us wonder whether it is not obvious at this point already that there is one European "common law" of human rights, created by the European Court of Human Rights, shared by all the member states of the Council of Europe and which is more or less contained in all of these primary sources. But even these sources alone disclose that this is an extremely simplified depiction. The closer we look at the case law, the more clearly its complexities stand out and a simple answer becomes more and more elusive. This understanding is reinforced by how the ECHR is applied (or not) in domestic law. The scrutiny of the texts of the relevant cases will proceed, therefore, by looking at the appropriate domestic case law of the United Kingdom, France and Italy. Although the investigation will discuss the position of the ECHR in relation to municipal law, the main concern will be to establish the ability of the ECHR to influence domestic legal interpretation. In addition, there will also be a study of the underlying reasoning in the case law of Strasbourg and a very brief inquiry into the discussions that led to the creation of the Council of Europe and particularly, the debates in the run-up to the ECHR.19 the Library of the Council of Europe in Strasbourg, keeps a comprehensive catalogue on published material on European human rights organised according to the articles of the ECHR and its Protocols.-20-A metaphor for the operation of human rights law in Europe Even where the population is much like that of Britain, a transplanted British institution will probably grow in a different manner because the soil is different22 To the mass of Americans resident in the island [of Puerto Rico]and this is particularly true of the lawyersthe entire system of law and government, of domestic and public institutions, was bad simply because it was different from our own ... The only way to make Americans of the Porto Ricans, it was argued, was to give them, without delay, the system of law of one of our States.24 37Sir Humphrey Waldock," The Effectiveness of the System set up by the European Convention on Human Rights", (1980) 1 HRLJ 1,11. 38Sir Humphrey Waldock, op. cit., 12.