The Status of the Human Rights Act

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Whilst there is no uncertainty that Britain’s topographic point in Europe affects the function of Parliament, it still retains legislative domination. [ 1 ] As maintained by Dicey, Parliament under the English fundamental law has the right to do or undo any jurisprudence and farther, no individual or organic structure is recognised by the jurisprudence of England as holding a right to overrule or put aside the statute law of Parliament.’ [ 2 ] However, as a consequence of Britain’s accession to the European Union ( EU ) at that place now exists, a making to Dicey’s rule of parliamentary sovereignty. Lord Hope of Craighead explains that, “ our fundamental law is dominated by the sovereignty of Parliament, but Parliament is not… absolute. It is no longer right to state that its freedom to pass admits of no making whatsoever… bit by bit but certainly, the English rule of the absolute legislative sovereignty of Parliament… is being qualified.” [ 3 ]

It must be acknowledged that the Human Rights Act 1998 ( hereinafter 1998 Act ) and the European Communities Act 1972 ( 1972 Act ) have created an univocal displacement in the British fundamental law. It is clear nevertheless, that in an effort to keep her parliamentary sovereignty, Britain has put shrewd steps in topographic point to guarantee that this ‘shift’ does non germinate into a new constitutional order.

Domination of Community Law

The European pacts have made it clear that Community jurisprudence is to be the supreme regulation of jurisprudence, to which national Torahs are low-level. This rule is resonated through assorted instances one of which being,Internationale Handelsgesellschaft[ 4 ] where the European Court of Justice ( ECJ ) stated that “the jurisprudence stemming from the Treaty, an independent beginning of jurisprudence, can non because of its very nature be overridden by regulations of national jurisprudencewithout the legal footing of the Community itself being called into question.”[ 5 ] The later ill-famed authorization ofR V Transport Secretary, ex p Factortame Ltd,[ 6 ] reverberations this averment. The ECJ held that a national tribunal must put aside a regulation of national jurisprudence if this was the exclusive obstruction forestalling it from allowing impermanent alleviation to protect Community rights. [ 7 ]

These determinations make it clear that the British Courts must non use national statute law whether enacted before or after the 1972 Act if to make so would conflict with Community jurisprudence. Sir William Wade proposes that this has effected a constitutional revolution since the 1972 Act has done what no other Act has done, which is to in consequence, adhere its replacements. [ 8 ]

Lord Bridge challenged the position expressed by some, that this was a ‘novel and unsafe invasion by a Community establishment of the sovereigntyof the UK Parliament’[ 9 ] by indicating out that since the domination of Community jurisprudence over the Torahs of member provinces was good established long before the UK joined the Community, whatever ‘restriction of its sovereignty Parliament accepted when it enacted the European Communities Act 1972, was wholly voluntary’. [ 10 ]

One can non undervalue the significance of Lord Bridge’s statement. Although the progressing gait of European integrating has made ‘extended inroads into the Diceyan philosophy of legislative domination, ’ [ 11 ] one can non disregard the fact that Britain were shrewdly cognizant of the effects accession to the EU would hold, prior to their rank. Community jurisprudence binds Parliament because theychooseto be bound. Upon scrutiny of commissariats of 1972 Act, it becomes clear that the ultimate legislative power remains with Parliament. The primacy of Community jurisprudence remains merely in so far as Parliament allows it.


In visible radiation of the evident domination of Community jurisprudence, one would presume that there would be rough effects for any member province that enacts into their national jurisprudence, statute law that is inconsistent with Community jurisprudence. Bradley and Ewing claim that in such a circumstance, an Act may be ‘disapplied’ , and the member province called upon to do an award of amendss for losingss suffered as a consequence of its footings, where the conditions of province liability are met. [ 12 ] The instances ofFactortame ( No.4 )[ 13 ] and( No.5 )[ 14 ] reinforce this contention. The tribunal inNo. 4ruled that claimants have the right ‘to obtain damages in national tribunals for harm caused by the breach; ’ [ 15 ] whilst inNo.5the House of Lords stated that the “calculated acceptance of statute law which was clearly prejudiced on the land of nationality and which necessarily violated an article of the Treaty, was a sufficiently serious breach to give rise under Community Law to compensatory amendss.” [ 16 ] Lord Bridge gives the conclusive position that in visible radiation of these countenances,“it has ever been clear that it was the responsibility of a UK tribunal, when presenting concluding opinion, to overrule any regulation of national jurisprudence found to be in struggle with any straight enforceable regulation of Community law.”[ 17 ] The linguistic communication used by the tribunals in theFactortameinstances and by Lord Bridge is nevertheless, instead flimsy and bad. It appears that whilst the countenance of amendssmayorshouldbe issued, the tribunals are instead loath to turn thismayorshouldinto awill. This probationary linguistic communication suggests that these countenances may non needfully be applied if member provinces ( and the UK in peculiar ) choose to move in a mode inconsistent with Community jurisprudence.


In malice of the aforesaid observations, it appears that the legislative domination of Parliament has been, to some extent, diminished by the 1972 Act. Lord Bridge suggests that the Act has been entrenched and as such, it will efficaciously adhere future Parliaments to pass in conformity with its commissariats. It is copiously clear nevertheless that whilst in theory, this appears to be the instance ; in pattern it unimpeachably is non. Bradley and Ewing, upon deliberation of this issue concluded that, where a future Parliament wished to pass in a mode inconsistent with the 1972 Act ‘it would look in such an contingency that Parliament[ would ]disown the ‘voluntary’ restriction of its sovereignty, which it accepted when it enacted the 1972 Act’ .[ 18 ] This issue was briefly addressed in the instance ofThoburn 5 Sunderland City Council,[ 19 ] where the tribunal commented that “abrogation or alteration could merely be achieved by express words in the ulterior legislative act, or by words so specific that the illation of an existent finding to consequence the consequence contended for was resistless.” [ 20 ] Further, it is apparent that it was ne’er the purpose of Parliament to intrench the 1972 Act, as made clear by the Lord Chancellor of the House of Lords in 1967 who stated that there were ‘no constitutional means available to[ Parliament ]to do certain that no future Parliament would ordain statute law in struggle with Community law.’[ 21 ] This basically meant that whilst it was sufficient that Parliament give thefeelingthat Community jurisprudence was supreme, they were unprepared to travel that one measure further and codify this new supreme order in the 1972 Act. This therefore gave Parliament the freedom to withdraw from the rules of Community jurisprudence whenever they so wished. This attitude was reflected in assorted subsequent instances including,Felixstowe Dock and Railway Co V British Transport Docks Board[ 22 ] where Lord Denning commented that “one time a Bill is passed by Parliament and becomes a legislative act, that will dispose of all treatment about the Treaty. These tribunals will so hold to stay by the legislative act without respect to the Treaty at all.” [ 23 ] In the instance ofMacarthys Ltd V Smith,[ 24 ] it ab initio appeared that the House of Lords altered the place they held inFelixstowe, nevertheless this alteration of bosom proved merely to be impermanent, since in that instance, the tribunal made the ulterior observation that “If the clip comes when our Parliament intentionally passes an Act with the purpose of disowning the Treaty or any proviso in it… it would be the responsibility of our tribunals to follow the legislative act of our Parliament.”’ [ 25 ]

The 1972 Act hence, offers really limited intrenchment in that Parliament will be entrenched in so far as they agree to be. As made clear by Lord Denning, Parliament has left open the possibility that it might wish to asseverate its domination. [ 26 ] In the event that Parliament chooses to move in such a mode, the piquing statute law will still use. [ 27 ]

The Courts

Now that the 1972 Act gives the tribunals the power to size up parliamentary statute law in order to find whether it is consistent with Community jurisprudence, does this represent a new constitutional order and therefore weaken further the legislative domination of Parliament? Jowell [ 28 ] suggests that some of the pronouncement in the instance ofR ( Jackson ) V Attorney General[ 29 ] confirms the existent possibility that, ‘the regulation of jurisprudence enforced by the tribunals is the ultimate controlling factor on which our fundamental law is based’ . [ 30 ] This observation is mostly erroneous. The tribunals possess merely, the powers as conferred on them by Parliament and the 1972 Act has done small to alter this. The lone circumstance where the tribunals can interpret a proviso or piece of statute law reverse to Community jurisprudence, was highlighted by Lord Diplock in the instance ofGarland v British Rail Engineering Ltd[ 31 ] where he maintained that “nil short of an express positive statement in an Act of Parliament that it was intended to be made in breach of an duty assumed by the United Kingdom under Community Treaty would, warrant an English tribunal interpreting that proviso inconsistent.”Although the tribunal have wider interpretive powers, they are still really much subsidiary to the Legislature. As identified by Lord Bingham, ‘the bedrock of the British fundamental law is … the domination of the Crown in Parliament … Statutes, officially enacted as Acts of Parliament, decently interpreted, bask the highest legal authorization.’ [ 32 ]

Direct Consequence

The 1972 Act gave consequence within the UK to those commissariats of Community jurisprudence [ 33 ] , which were, harmonizing to the European pacts, intended to hold direct consequence within member provinces. [ 34 ] The Community organs may therefore legislate for the UK as they do for all member provinces. [ 35 ] As stated in the House of Commons‘directly applicable commissariats ought to predominate over future Acts of Parliament in so far as they might be inconsistent with them[ therefore ]shackling the domination of future Parliaments.’ Parliament ‘may pass in breach but tribunals must deny it any consequence to the extent of its inconsistency.’[ 36 ] Since Parliament is no longer the exclusive organic structure with the power to do new jurisprudence for the UK, one may suggest that the legislative domination of Parliament has been resultantly undermined. This proposition is fleetly discarded by the literature in the instance ofMarleasing SA[ 37 ] which states that ‘domestic tribunals are required to interpret domestic jurisprudence in line with the demands of a directing, but there is no overruling duty to make this,’ and farther, that this duty merely‘arises when it is possible to make so’. [ 38 ] Thus, Parliament is by no agencies bound to give consequence to or implement straight effectual Community statute law, nor are the tribunals bound to construe domestic Torahs in line with such statute law.

The Human Rights Act

The Human Rights Act was enacted into UK statute law for many grounds, one of which was to set an terminal to criticisms that the UK must no longer be governed entirely by the Convention, which was non tailored specifically to British conditions. [ 39 ] The Act provides a charter of rights now enforceable before domestic tribunals.

In his column for the times The Times, a barrister expressed the position that in jurisprudence the Human Rights Act has no higher position than the Dangerous Dogs Act 1991. [ 40 ] Other observers have expressed the position that the 1998 Act is no more than an ordinary legislative act. [ 41 ] Despite Lord Steyn’s expostulations to the contrary, [ 42 ] it appears that this is true. Under the fundamental law of the UK and consistent with the philosophy of parliamentary sovereignty, statute law can non be entrenched. Although in relation to the Act, the philosophy of implied abrogation does non run, it can be repealed or amended if there is an express purpose to make so. Furthermore, in its White Paper the authorities announced that it did non mean to allow tribunals to strike down Acts of Parliament, whether that statute law preceded the Act or was introduced later. [ 43 ] The Act, in the authorities ‘s position, was‘intended to supply a new footing for judicial reading of all statute law, non a footing for striking down any portion of it.‘ [ 44 ]

Convention Jurisprudence

Section 2 ( 1 ) of the 1998 Act obliges a tribunal or court, in finding a inquiry which has arisen in connexion with a Convention right [ 45 ] to ‘take into history any’ judgement, determination, declaration or sentiment of the Strasbourg variety meats, ‘ [ in ]so far as, it is relevant to the proceedings in which that inquiry has arisen.’ This affords the tribunals or courts under s.2 ( 1 ) much discretion as to whether or non to follow the law of the Strasbourg tribunal or as to what extent the law will be followed. [ 46 ] Lord Justice Buxton emphasised this point in the instance ofR ( on the application of Anderson )saying that it is the determination of ‘the courts…to take the[ Strasbourg ]tribunal ‘s law into history[ and ]whether we determine the instance in conformity with it ; or on the other manus diminution on a sound footing to use that law.’ [ 47 ] Although domestic tribunalslookto be bound to use Convention law, it is in fact wholly unfastened to the bench as to whether they do so. [ 48 ]

Harmonizing to Masterman, instance jurisprudence suggests that domestic tribunals have tended to follow a place in which the relevant Strasbourg law is followed in all but the most utmost fortunes. Masterman maintains that this puts the UK in ‘a place, which comes near to[ our ]domestic tribunals being bound to follow the Convention instance jurisprudence, a demand which was expressly excluded during the parliamentary transition of the Human Rights Bill.’ [ 49 ] Lord Hoffmann makes it undeniably clear nevertheless that, ‘the House[ of Lords ]isnonedge by the determinations of the European tribunal.’ [ 50 ]

Interpretation and Incompatibility

Section 3 of the 1998 Act requires that primary and secondary statute law, whenever enacted, must be interpreted and applied in a mode consistent with Convention rights. However subdivision 3 ( 2 ) states that this demand does non impact the cogency, go oning operation or enforcement of any incompatible statute law. [ 51 ] In malice of contrary sentiment, this does non intend the Act does non function a intent. As proposed by Hoffmann, “ [ the Act ]ensures that Parliament, in go throughing statute law has to concentrate straight on any issues or possible violations of rights which may originate. Therefore, there will be political force per unit area on the authorities and Parliament non to suggest of or go through Torahs, which infringe rights and to alter those that do.” [ 52 ]

In order to forestall a circumstance where statute law is found to be inconsistent with the Convention [ 53 ] , s.3 stipulates that the tribunal have‘a responsibility to endeavor to happen a possible reading compatible with Convention rights’ . They are therefore granted broad interpretive powers, which as stated by Lord Steyn might let tribunals to‘adopt an reading which may look linguistically strained.‘ [ 54 ] There are bounds as to how far tribunals can stretch this reading as identified in the instance ofRe W and B ( Children: Care Plan )[ 55 ] where the House of Lords ruled that the Court of Appeal’s reading went beyond the boundary of reading and exceeded its judicial legal power. One must observe nevertheless, that the tribunals would non be able to transcend their judicial legal power, were they non permitted such broad interpretive powers, which in fact dilute the consequence that Convention jurisprudence has on member provinces.

One must indicate out that Parliament does nonprivationto conflict the Convention and in the event that they do, justnesss in the instance ofR ( Jackson )suggested that in an utmost instance the tribunals might non implement an effort by Parliament to conflict the rules of the Convention. [ 56 ] This position is mostly theoretical nevertheless, and the happening of such a state of affairs is extremely improbable. It is clear that the attack adopted towards the Act, is that Parliament is free if it wishes to ignore its commissariats. This preserves the bing constitutional balance between Parliament and the tribunals and therefore it becomes clear that neither the passage of 1972 nor the 1998 Act has brought about a ‘new constitutional order.’ [ 57 ]

Section 4 provides that, if a tribunal is satisfied that a proviso of primary or low-level statute law is incompatible with one or more Convention rights, it may do a declaration of mutual exclusiveness. Such a declaration will non, nevertheless, affect the cogency, go oning operation or enforcement of the offending statute law. Alternatively, subdivision 10 makes proviso for such statute law to be amended by ministerial order to rectify the mutual exclusiveness, but there is no demand that this must be done. [ 58 ] As argued by Bamforth, a judicial declaration of mutual exclusiveness is designed to enforce a political but non a legal duty to raise subdivision 10. He makes the making nevertheless, that in the aftermath of a declaration of mutual exclusiveness,‘Parliamentmaynonmust,but in pattern, we believe, normallywill–legislate.’[ 59 ] Notably, the determination as to whether to amend incompatible statute law remains with Parliament, and should they take non to, the incompatible position of the statute law in no manner affects its cogency under British jurisprudence. [ 60 ]

Section 6 of the Act, provides that it is improper for a public authorization to move in a manner, which is incompatible with a Convention right. This appears to curtail the actions of the tribunals ( or public governments ) , nevertheless the subdivisions of the proviso travel on to province that, s.6 does non use if as a consequence of one or more commissariats of primary statute law ( whether incompatible with Convention jurisprudence or non ) the authorization could non hold ‘acted otherwise ‘ or was ‘acting so as to give consequence to or implement those commissariats ‘ . Consequently, this subdivision is capable to subdivisions 3 and 4 and it is likely that a public authorization moving in a mode incompatible with a Convention right would be making so because they are giving consequence to an incompatible piece of domestic statute law declared under s.3 or s.4. Their behavior would non therefore, be improper. Section 6 appears to be buttressing Convention jurisprudence with one manus and shackling it with the other. This nevertheless, will ever stay the instance whilst the 1998 Act continues to accommodate the two viing aims of, continuing parliamentary sovereignty and detecting the rules of Convention jurisprudence.


As a consequence of the 1972 and 1998Act, “we are witnessing the beginning of a new epoch in constitutional thinking… which views our system of authorities as resting non on the absolute and unchained power of one subdivision of the province, but instead a new constitutionalism which requires each subdivision of the province carefully to esteem the state of the other branches.”[ 61 ] The authoritative history given by Dicey, of an absolute parliamentary domination ‘can now be seen to be out of topographic point in the modern United Kingdom’ . [ 62 ]

Parliament now operates within a pan-European constitutional model, and EU jurisprudence now enjoys de facto domination in the UK. [ 63 ] It is clear nevertheless, that whatever domination EU jurisprudence enjoys, is far from unconditionally bestowed. Parliament has successfully retained its ( albeit diluted ) sovereignty. As such, Parliament, if it so chooses can pass in a mode contrary to Community and Convention jurisprudence. Neither the 1972 nor the 1998 Act will take away from this power. [ 64 ]

Lord Justice Laws provides a precise sum-up of Britain’s constitutional place in International Transport Roth GmbH. He notes that, “in its present province of development, the British system may be said to stand at an intermediate phase between parliamentary domination and constitutional supremacy… Parliament remains the crowned head legislature…but at the same clip,the common jurisprudence has come to recognize and back the impression of constitutional, or cardinal rights.” [ 65 ] Although Parliament has fettered its legislative power, it is still really much Sovereign.



  • M Armhein,The Handbook of Human Rights Law: An Accessible Approach to the Issues and Principles( Kogan Page 2005 )
  • A.W. Bradley and K.D. EwingConstitutional and Administrative Law( 14th Edition Pearson, Longman 2007 )
  • A.V. Dicey, Introduction to the Study of The Law of the Constitution ( 10th Edition, Macmillan, Basingstoke, 1959 )
  • H. BarnettConstitutional and Administrative Law( Routledge: Cavandish 2006 )
  • H. Fenwick, Civil Liberties and Human Rights ( Cavendish: London 2002 )
  • D Hoffman and J Rowe, ‘The Convention and the United Kingdom’ ,Human Rights in the UK: A General Introduction to the Human Rights Act 1998, ( London, Pearson Longman 2003 )

Journal Articles

  • N Bamforth ‘Parliamentary Sovereignty and the Human Rights Act 1998’ ( 1998 ) Winter, PL 572
  • M Elliot ‘Parliamentary Sovereignty Under Pressure’ ( 2004 ) 2 ( 3 ) IJCL 545
  • J. Jowell ‘Parliamentary Sovereignty Under the New Constitutional Hypothesis’ ( 2006 ) Autumn PL 562
  • R. Masterman, ‘Section 2 ( 1 ) of the Human Rights Act 1998: Binding Domestic Courts To Strasbourg’ ( 2004 ) P.L. 725-737
  • A. O. Neill ‘Fundamental rights and the constitutional domination of Community jurisprudence in the United Kingdom after degeneration and the Human Rights Act’ ( 2002 ) P.L. , Winter, 724-742
  • R. Singh ‘Interpreting Bills of Rights’ ( 2008 ) 29 ( 2 ) Statute Law Review 82
  • Steyn, ‘The New Legal Landscape’ ( 2000 ) 6 E.H.R.L.R 549-554
  • WR. Wade ‘Sovereignty – Revolution or Evolution? ‘ ( 1996 ) 112 LQR 568

Consultation Documents

  • White Paper, 1967 ‘Legal and Constitutional Implications of the United Kingdom Membership of the European Communities’ London, HMSO, Cmnd 3301
  • White Paper, ‘Rights Brought Home: The Human Rights Bill’ ( 1997 )


  • HansardHL Deb. ‘The European Economic Community’ 8 May 1967 vol. 282
  • HansardHC Debate 15ThursdayFeb 1972 vol. 278
  • Hansard, H.L. Deb, November 18, 1997, vol. 301


  • Felixstowe Dock and Railway Co V British Transport Docks Board[ 1976 ] 2 LlL Rep 656
  • International Transport Roth GmbH v. Secretary of State for the Home Department [ 2002 ] 1 C.M.L.R. 50
  • Macarthys Ltd V Smith[ 1979 ] ICR 785
  • Re W and B ( Children: Care Plan )[ 2001 ] EWCA Civ 757
  • R ( on the application of Anderson ) v Secretary of State for the Home Department [ 2001 ] EWCA Civ 1698, [ 2002 ] 2 W.L.R. 1143
  • R V Ashworth Special Hospital Authority ex parte N[ 2001 ] EWHC Admin 339
  • R 5 Employment Secretary, ex p EOC[ 1995 ] 1 AC 1
  • R ( Jackson ) v Attorney-General[ 2005 ] UKHL 56 ; [ 2006 ] 1 A.C. 262
  • R.v Secretary of State for the Home Department, ex p. Simms [ 2000 ] 2 A.C. 115
  • R V Transport Secretary, ex p Factortame Ltd[ 1990 ] 2 AC 85
  • R V Transport Secretary, ex p Factortame Ltd ( No. 2 )[ 1991 ] 1 AC 603
  • R V Transport Secretary, ex p Factortame Ltd( No.4 )[ 1996 ] QB 404
  • R V Transport Secretary, ex p Factortame Ltd( No.5 )[ 2000 ] 1 AC 524
  • Thoburn 5 Sunderland City Council[ 2002 ] EWHC 195
  • Webb V EMO Air Cargo ( UK ) Ltd ( No.2 )[ 1996 ] 2 CMLR 990

European Cases

  • Case 6/64Costa V ENEL[ 1964 ] ECR 1
  • Case 12/81Garland v British Rail Engineering Ltd[ 1983 ] 2 AC 751
  • Case 11/70Internationale Handelsgesellschaft v. Einfur und Vorratstelle fur Getreide und Futtermittel[ 1970 ] E.C.R. 1125
  • Case 106/89Marleasing SA V La Commercial Internacional de Alimentacion SA[ 1992 ] 1 CMLR 305


  • Dangerous Dogs Act 1991
  • European Communities Act 1972


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2 ( 4 )

  • Human Rights Act 1998

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