HRA question

2/16/25 11:30 PM

Discuss and explain the purpose, structure and effect of the Human Rights Act 1998 upon the
protection of civil rights and freedoms in the United Kingdom

Protection of basic and fundamental rights is one of the element of constitutionalism.

Before the HRA 1998 the human rights were being protected by the common law in UK. The
history goes back to 1215 when the King signed the document Magna Carta which stated that
king would require parliaments consent before any tax, no person will be punish until he has
breached the law. This lead to right to life, liberty and fair trial. Similarly, parliament and
courts also played their part in preserving human rights. Parliament enacted various statues
such as Habeas Corpus Act and the courts gave various judgements to protect the
fundamental rights. One of the example is the case law of Entrick V Carrington, where the
courts upheld the human rights and did not allow search and seize with out warrant, however
the courts did not provide absolute protection and it can be seen in the case law of Malone v
MPC. In 1953 UK signed European convention on human rights (ECHR). It was a international
document which contained human rights, however it was not enforceable in the domestic
courts but rather could only be used as a persuasive document (brind case), however, where
parliament has enacted a law which is clear the courts, hv no option for interpretation
(rossminster case). Furthermore due to the concept of parliamentary supremacy the courts
were obliged to use the law made by parliament even if it violated the human rights as in the
case of Burmah oil v Lord Advocate where the parliament had enacted a retrospective law.

It was essential for parliament to enact HRA 1998 so that the human rights could be protected
in courts as well as the domestic laws to be line with the human rights and encouraging public
bodies to adopt the culture of HR protection. This led to increase in public's confidence in the
law and upholds to rule of law

Section 1 of HRA'98 states that the ECHR shall be incorporated in the domestic law, which
means that ECHR rights will become enforceable in the domestic court. The section 2 states
that the domestic courts should be taking ECHR judgments into account when giving
judgement on domestic cases. The section 3 states that as far as possible the courts should
read the domestic law in accordance with the ECHR, this allows the courts to interpret the
statutes and make them compatible with the ECHR, even if there is no ambiguity, this is done
to make law consistent with human rights (ghaidan v godin mendoza). Section 3 also allows
courts to read in, read out and read down provisions in statute to make the laws compatible
with ECHR, however this creates a room for judicial activism and negatively impacts on the
separation of powers as the judges shall be interpreting the laws and not changing or creating
them, however it does not have an huge impact on the parliamentary supremacy since the
courts are not challenging the acts of parliament but in fact these powers have been given to
the judges by the parliament itself.
The section 4 of HRA'98 states that if any statute can not be read in line with ECHR the courts
have been granted powers to issue the declaration of incompatibility. But, the declaration of
incompatibility absolutely does not effect the validity of the statute but it only raises an alarm
for parliament to change the law and make it compatible with the ECHR. However, legally
parliament is not bound to change the law but due to political pressure the parliament is
required to change the law and make it compatible with the ECHR. (Belmarsh case) (Bellinger v
Bellinger). It can be debated whether the declaration of incompatibility issued by the courts
impact the parliamentary supremacy since it is challenging the Act of Parliament however it
can be counter argued that since the section 4 has been made by parliament itself, it will be
regarded as voluntary relinquishment. According to Lord Steyn, section 3 is regarded as the
primary remedy when it comes to making the law compatible and section 4 is used as a last
resort. however, the Lady Hale argued that there must be more use of section 4 as it will lead
to more open dialogues between the three arms of state, courts, government and parliament,
make law more smooth. The section 6 of HRA'98 requires all the public bodies to act in
accordance with the ECHR and incase they fail to act in accordance with ECHR their action can
be considered as illegal or ultra vires. The section 10 of HRA 1998 states that if declaration of
incompatibility is issued, the minister is allowed to make remedial orders and change the law
to remove incompatibility until parliament makes new legislation. However this impacts the
parliamentary supremacy since it enables the ministers to change the law made by parliament,
but these powers are granted to ministers by parliament itself and parliament still holds the
power to take these powers back. Similarly there is an impact on separation of powers since
the law is being made by the minister and not the parliament.

Analyzing the effectiveness of the human rights Act it can be said that it has been successful as
per the author Vernon Bogdanor who states in his book, The British Constitution that the HRA
1998 has given birth to a new British Constitution which is based on the protection of human
rights and not on the parliamentary supremacy. However it can be argued legally that since
HRA is an Act of Parliament it can be repealed any time but practically parliament can not
repeal this act due to political restriction and even if does repeal it, it will have to replace it
with another human rights document. Moreover it can also be said that human rights are not
very effective in protecting the human rights as it can be seen in many cases such as of
Burmah Oil v Lord Advocate.

Since HRA is not fully successful In protecting the human rights, moving towards a codified
constitution will be a better option for UK. But it is a difficult and lengthy process to codify the
constitution, therefore the Bill of Rights should be made containing all the human rights and
must hold the same or equal importance as of the constitution and cannot be easily repealed
by Parliament even with simple majority. However, up till now there have been no steps taken
for making of this document.

It can concluded that yes, HRA'98 has been quite effective in preserving the human rights. If it
had not been successful the UK would have taken active steps towards introducing the Bill of
rights. The UK's constitution may not be codified but the protection of human rights are done
in same way as of any country with codified constitution. Although, HRA'98 is just an another
act of parliament and legally seeing, it can be repealed by parliament but practically it is not
easy as it appears as the parliament will have to face serious political repercussion and in
extreme scenario even may trigger a revolution.