Modelo estuarino

From the wording of s 3, four important characteristics can be identified which seem to distinguish s 3, and thus the HRA as a whole, from ordinary Acts of Parliament. Such

characteristics assist in highlighting the purpose behind s 3 as a compromise between having either elected representatives or judges as the protectors of human rights; in other words, it is a compromise between maximalist and minimalist approaches towards judicial protection of civil rights as seen with third wave Bills of Rights.7

First, s 3 is an interpretative obligation upon the UK judiciary to read incompatible primary and secondary legislation as being compatible i.e. to interpret them in a Convention-friendly manner;8 _{an interpretative obligation which is ‘similar to that adopted in New Zealand,’}9 _but

nevertheless stronger. Secondly, this obligation under s 3 applies to primary and secondary legislation ‘whenever enacted;’10 _{a dramatic feature of the obligation as it makes inert and null}

the application of implied repeal with regards to the Convention rights. In other words, if a statute which is incompatible with the European Convention on Human Rights (ECHR) is passed after the HRA, it will not automatically repeal Schedule 1 of the HRA. Consequently, the rights under the HRA are protected from future parliaments other than by express

repeal,11 _{thus insulating and protecting the human rights of citizens from encroachment by the}

legislator. Although this can initially be seen as a strong feature of the HRA, especially when one considers how it was previously held to be theoretically impossible to accomplish,12 _thus

suggesting that although ‘the HRA does not benefit from the entrenched status of those and other comparable rights instruments internationally,’13 _{the provision could equally be seen as}

having a lower status than ordinary Acts of Parliament. This is because the HRA lacks the superior status to automatically override past incompatibilities or to automatically make null

7

Leigh and Masterman (n 5) 84. 8

Section 3(1): ‘So far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’

9

Grosz, S. Beatson, J. and Duffy, P. Human Rights: The 1998 Act and the European Convention (London: Sweet and Maxwell, 2000) 29. See s 6 New Zealand Bill of Rights Act 1990.

10 _{Section 3(2)(a).} 11

See Thoburn v Sunderland City Council (2003) QB 151; (2002) 3 WLR 247; (2002) 4 All ER 156. 12

See Ellen Street Estates v Ministry of Health [1934] KB 590, 597 (Maugham LJ): ‘[A]ccording to our constitution … it is impossible for Parliament to enact that in a subsequent statute dealing with the same subject-matter there can be no implied repeal. If in a subsequent Act Parliament chooses to make it plain that the earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of Parliament.’ It must be noted that there is one notable exception to this with regards to European Community law in the form of the European Communities Act 1972 s 2(4). 13

and void future incompatible legislation in the form of judicial strike down as seen with the American Bill of Rights. This however was always the intention of the HRA; a view supported by the then Lord Chancellor Lord Irvine, who stated that the government ‘did not wish to incorporate the Convention rights, and then, in reliance on the doctrine of implied repeal, allow the courts to strike down Acts of Parliament.’14 _{Grosz et al describes this as an}

illustration by what the government meant by giving the Convention rights ‘further effect;’ in other words, a compromise between the two opposing views of civil rights protection.15

In this sense, s 3, as a result of compromise, may allow authority for the HRA to be described as an interpretation act16 _{which is designed simply to bring national compliance with the ECHR}

and thus satisfy the UK’s Article 1 obligations. However, as correctly argued by Fenwick, ‘s 3 demands that all statutory provisions should be rendered, if possible, compatible with the Convention rights. Therefore, by imposing this interpretative obligation on the courts, the rights become capable of affecting subsequent legislation in a way that is not normally possible.’17 _{Therefore, thirdly, the ‘reach of section 3(1), and the accompanying scope for}

judicial discretion is potentially enormous.’18 _{Indeed, the reversal of the rules of implied}

repeal should be seen as a strength because s 3 empowers the judiciary to interpret legislation ‘[s]o far as it is possible to do so,’19 _{thus, as Fenwick argues, placing the protection of human}

rights ‘very much at the mercy of judicial interpretation of statutes.’20 _{As a result, s 3 is much}

more than an interpretative measure in the traditional sense. Section 3 potentially gives an unusual degree of discretion to un-elected judges which could be construed as legislative, as under the American Bill of Rights, and undeniably one which could potentially allow judges to interpret legislation with Convention rights in a uniquely British way.21

However, it is submitted here that it was not the intention of Parliament to make the judiciary the sole protector of civil liberties because of the fourth important distinguishing feature of s

14

Grosz, Beatson and Duffy (n 9) 31-32. 15

Ibid.

16 _{Elliott, M. The Constitutional Foundations of Judicial Review (Oxford: Hart Publishing, 2003) 200.} ‘[L]ike the New Zealand Bill of Rights Act 1990, the British legislation is essentially an interpretative instrument.’

17 _{Fenwick, H. M. Civil Liberties and Human Rights (Routledge-Cavendish, 2007) 172.} 18

Leigh and Masterman (n 5) 88. 19

Section 3(1). 20 _{Fenwick (n 17).} 21

See Hope, Lord D. ‘The Human Rights Act 1998 – The Task of the Judges’ in Andenas, M. and Fairgrieve, D. (eds.) Lieber Amicorum in Honour of Lord Slynn of Hadley Volume II Judicial Review in

International Perspective (Kluwer Law International, 2000) 417: ‘The Act has stopped short of givi ng

power to the judges to set aside or to disapply legislation which has been enacted at Westminster. But the interpretative function will nevertheless be a far-reaching one.’

3: the preservation of parliamentary sovereignty,22 _{a provision which can also be found under s}

6.23 _{There is therefore a clear legislative intention for Parliament to remain as the supreme}

source of law, thus making the HRA ‘not so radical as to exchange parliamentary supremacy for judicial supremacy.’24 _{It is from this that the HRA can be seen as being a fair and principled}

compromise between maximalist and minimalist arguments.25 _{Clearly, the express provision of}

an interpretative obligation under s 3 was designed to cement this compromise firmly in the minds of the judiciary, thus making the interpretative obligation weaker than judicial strike- down. However, despite its comparative weakness, the interpretative obligation under s 3 should not be viewed as insignificant. As argued by Kavanagh, there is a ‘tendency to underestimate the considerable law-making power which judges exercise (and have always exercised) when they interpret statutes, and to overestimate the significance of the fact that judges in the UK do not have the power to ‘strike down’ Acts of Parliament.’26 _Therefore,

although ‘[t]here is a big difference between the two [a Bill of Rights and an Interpretation Act] in terms of constitutional theory … one should not be considered a ‘stronger’ version than the other.’27 _{Although the inclusion of s 4 imposes limits on the use of s 3, the exact limit of what}

is possible under s 3 lies solely in the hands of the judiciary. If the inclusion of an interpre tive obligation is to make the HRA a true third wave Bill of Rights, which perpetuates democratic dialogue, much depends on how the judiciary has approached the limits of its own power.