Does the HRA 1998 enable the courts to confer an adequate degree of protection

on fundamental rights? Discuss with reference to specific cases.

Following the Human rights Act cases relating to breaches of fundamental rights
(as stated in the ECHR) can be settled in domestic courts. There is an on going debate
with regard the adequacy of the protection that the courts are able to provide. However,
recognition of the continuing importance of parliamentary sovereignty as the ‘keystone
of the law of the constitution’ is key to understanding why the power of the courts is far
less than comprehensive. There has been recognition in both the act of this fact as well
as by judges in their interpretation of the act. Nevertheless there are still those who
believe the role of the courts is too great. Indeed Jonathan Morgan states that the act has
led to the politicisation of judges and the usurpation of the power of parliament. What
constitutes an adequate degree of protection is a controversial issue and requires closer
analysis.
In assessing adequacy it is important to consider the system of protection for
fundamental rights that was replaced by the HRA. Prior to 2000 protection for civil
liberties in domestic courts had been protected by the principle of residual freedom. That
people would be free to do anything that was not expressly prohibited. There were
however, several major shortcomings to this principal. As would be expected there was a
general tendency for these residual freedoms to be gradually eroded. Additionally this
principal would leave open to parliament any course of action that was not expressly
prohibited by the law. The case of Malone (1979) is a clear example of the problems
caused by such an approach. The court held that it was not unlawful for the authorities
to ‘tap’ people’s phones, as the prosecution could not point to any express prohibition to
the practise. Therefore the rights based approach that domestic courts now follow is
clearly much more adequate that the previous system but that is not necessarily to say
that it is not sill found wanting.
When looking at adequacy it is also important to consider whether it should truly
be the role of the courts to protect fundamental rights. Critics of the HRA such as
Morgan suggest that judges lack the democratic legitimacy to be justified in making merit
based decisions in human rights cases. The proportionality approach to human rights in
judicial review cases is a clear example of this. An unqualified role for judges to make
these decisions would further blur the boundaries of the separation of power as judges in
some cases could alter government policy as a consequence of their decisions.
Additionally parliament also have a role in preventing the government from passing acts
that run contrary to human rights. The minister responsible for an Act must make a
declaration as to whether the provisions of the Act comply with the ECHR. Also the
joint committee on Human Rights has an important role in scrutinising government
legislation. Therefore it could be said that while the courts role in the protection of
fundamental rights may not be adequate in itself it should be looked at in concert with
the role already played by parliament. Furthermore given the undemocratic nature of
judges the level of protection that they should be able to provide (what is adequate)
needs to be looked at with reference to the need to maintain parliamentary sovereignty.
Therefore adequate should not be synonymous with comprehensive. With this in mind I
will now consider the power that the courts do have under the act.
One of the most important methods of protection that the courts have is the
power conferred by S3 of the act. The section states that the courts must interpret and
give effect to legislation in a way that is compatible with the ECHR. The law Lords
recognised the potential power of such a provision soon after the enactment of the act.
Lord Steyn in R v A (2002) stated that under S3 it would be possible for the courts, when

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considering legislation that would potentially breach the ECHR, to to ‘adopt an
interpretation which linguistically appears strained’. Lord Nicholls in Ghaidan (2004)
states the view of the courts towards S3 relatively well. The courts are required to
construe legislation, even when there is no question of ambiguity, compatibly with the
ECHR. That is to say that the courts are capable of adopting an interpretation that
departs from the natural reading of the act and the ‘unambiguous meaning that the
statute would otherwise bear’. The facts of the Ghaidan case are somewhat illustrative of
this principal. Under the rent act, where a tenant dies a ‘surviving spouse’ including
anyone living with the deceased as ‘his or her husband or wife’ would be able to succeed
the tenancy. The natural reading of this provision would clearly not extend to a
homosexual partner, however such a reading would infringe the partner’s article 8 right
(the right to respect for private an family life). Therefore under S3 of the HRA the court
interpreted this to include homosexual partners. This power of the courts to deviate
significantly from what was the intention of the provision is a key way that courts can
protect fundamental rights. Nevertheless the courts recognised the continuing superiority
of parliamentary sovereignty. Lord Nicholls while on the one hand understanding that
the courts had significant power, on the other maintained that the courts role was to
‘interpret rather than legislate’. The courts were therefore unable to adopt an
interpretation that is contrary to a fundamental feature of the legislation. Therefore had a
fundamental feature of the Rent Act been to restrict homosexual partners from
succeeding their deceased partners then it would have been impossible for the courts to
adopt the interpretation it did. There are examples where courts have been unable to find
an acceptable interpretation; such was the case with the Anti-Terrorism, Crime and
Security Act 2001. Therefore it is clear that while there is significant power in the hands
of the court under S3, the courts power does not extend to situations where a
fundamental feature of the legislation is contrary to a right under the ECHR. In these
circumstances the court must issue a declaration of incompatibility. This brings me on to
consideration of the court’s power under S4.
Should a compatible interpretation prove impossible by the courts then there is
the issuance of a declaration of incompatibility. It is important to recognise from the
inception that the power of such an interpretation is political rather than legal. Therefore
a declaration of incompatibility does not constitute the repeal of a provision. Indeed S4
(6) of the act expressly states that the declaration does not affect the ‘validity, continuing
operation or enforcement of the provision’. This does not necessarily signify that the
declaration is of purely symbolic significance. The Belmarsh case concerning Part 4 of the
Anti-terrorism Crime and Security Act is a prime example of the effect that a declaration
could have. Part 4 allowed for the indefinite detention of terrorist suspects pending
deportation. The House of Lords ruled that this was incompatible with the ECHR and
accordingly issued a declaration. The effect of the declaration was to induce the
government to amend the Act so that it could be interpreted compatibly. Therefore this
is clear evidence that the effect of a declaration is more than merely symbolic. The
issuance of a declaration of incompatibility and the likelihood of a similar decision from
Strasbourg is, in the vast majority of cases, sufficient to induce the government to
remove the breach of the convention.
Nevertheless, the lack of legal significance to the declaration is a severe limit on
the power of the courts to protect fundamental rights. The fact that the despite the
declaration the relevant provision continues to have effect means that it is left to the
discretion of the government as to whether an amendment should be made. The on
going votes for prisoners argument, although no declaration was made, is strong
evidence of the governments willingness to refuse to amend legislation that breaches the
ECHR. Indeed in the case of Chester v Secretary of State for Justice (2010) the CoA refused to

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issue a declaration knowing limited effect it would have given the prior government
refusal to amend the law. Therefore it is clear that while a declaration exerts significant
political pressure on the government it by no means gives the courts a comprehensive
power to protect the fundamental rights of a claimant. The courts are on the most part
dependent on the complicity of the government to amend the legislation; otherwise the
courts are bound to apply the provision.
S3 and S4 obviously provide a high degree of protection through both the power
to go against a natural reading of a provision to interpret the act compatibly coupled with
the political pressure exerted when a declaration of incompatibility is made. Nonetheless
consideration must be given to the considerable lacuna that exists where the fundamental
feature of a provision is contrary to a convention right and the government refuses to
amend a piece of legislation following a declaration. However, is the protection that the
courts are able to provide adequate? In the vast majority of cases, the protection that the
courts are able to provide proves adequate for the protection of fundamental rights.
However, the preoccupation with maintaining the primacy of parliament has meant that
in cases such as that concerning the votes for prisoners, that courts are unable to give
sufficient protection to the fundamental rights of the parties concerned.

The courts are also capable of protecting fundamental rights through section 6 of
the HRA. This section states that it is unlawful for a public authority to act in a way that
is incompatible with a convention right. Therefore the courts are able to scrutinise the
behaviour of public authorities in order to ensure that they act in accordance with the
ECHR. However, like the powers under S3 and S4 these powers have certain
weaknesses. The major weakness is a problem of the courts own making due to their
restrictive interpretation to the question of what constitutes a public authority. This was
an interpretation first identified in the court of appeal case Poplar Housing association Ltd v
Donoghue (2001) where the court decided that private bodies exercising a public function
or under contract with a public authority were not judged to come within the ambit of
the act. Despite significant resistance, this approach was confirmed by the House of
Lords in the case of YL v Birmingham City Council (2007). The case concerned a private
care home company that operated under contract with a public authority. The company
had given an elderly resident 28 days notice to leave after a disagreement with the
resident’s family. It was alleged that this act violated her right under Article 8 of the
ECHR (right to respect for private and family life). Additionally the power of the court if
once again weakened by concessions made to the principal of parliamentary sovereignty.
S6 (2) of the act makes it clear that where primary legislation makes it clear that there is
no way for the public authority to act in a way that is compatible with the ECHR that the
public authority is bound to act in accordance with the act. Thus the courts cannot
designate the conduct as unlawful and they will therefore have no power to intervene.
Once again it appears that while in the vast majority of cases the power conferred
by S6 of the HRA will be adequate for the protection of fundamental rights. However,
concessions made to maintenance of parliamentary sovereignty in S6 (2) as well as the
restrictive approach taken to what is a public authority severely limits the ability for the
courts to protect fundamental rights. The distinction drawn between a public authority
performing a public service and a private body performing a public service is far too
arbitrary, however despite much scholarly criticism remains the approach taken in
English law. There is hope that Strasbourg will impose an alternative approach however
as of yet there is little evidence of this.

Overall while the courts do have substantial powers to protect fundamental

rights as conferred by the HRA (principally under S3, 4 and 6) these powers are by no

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means comprehensive. The need to maintain parliamentary sovereignty has led to the
powers conferred on the courts to be severely weakened. However, given the importance
that parliamentary sovereignty is given in almost every facet of English law what is
adequate should in reality be judged in concert with the need to maintain primacy of
parliament. Therefore the powers conferred on the courts will always be a compromise
between the need to protect rights and the need to protect the superiority of parliament.
With this in mind I submit that the protection that the courts are able to give to
fundamental rights are as adequate as is possible. This is subject to the exception of the
restrictive approach taken to public authorities. The restrictive interpretation in
unnecessary and arbitrary and should be replaced by an interpretation that incorporates
private bodies exercising public functions. This approach would allow more
comprehensive protection to those whose rights are breached while not infringe upon
the primacy of parliament.

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