Judicial Discretion versus Restraint in the Realm of Human Rights: A Contextual Approach to the UK Human Rights Act 1998

AuthorTerence McCleave
PositionLLB Candidate, Queens University, Belfast
Pages102-126
JUDICIAL
DISCRETION
VERSUS
RESTRAINT
IN
THE
REALM
OF
HUMAN
RIGHTS:
A
CONTEXTUAL
APPROACH
TO
THE
UK
HUMAN
RIGHTS
ACT
1998
TERENCE
MCCLEAVE*
Introduction
This article
seeks
to
analyse
the
legitimacy
of
the
claim
that
section
3
of
the
Human
Rights
Act
1998'
has
transgressed
the
traditional
constitutional
boundaries
of
the
United
Kingdom
and
has
thus
moved
the
judiciary
to
the
position
of
'unelected legislators'.
The
article will begin
by
detailing
section
3
of
the
Human
Rights Act.
The
Author
will
then move
on to
consider
the
approach
that
the
Judiciary
has
adopted
to
section 3.
In
doing
this
an
attempt
will
be
made
to
engage
with
the
development
of
the
case
law
regarding
section
3
and also
with
the views
of
various
academic
and
legal
commentators.
The argument
will be made that
the
Judiciary
have applied
section
3
of
the HRA
on
a
contextual
basis.
Furthermore,
the
Author
will
argue
that
this approach
is
important
as
it
allows
the
Judiciary
to give
effect
to the
delicate
compromise
between
section
3
and
section
4
of
the
HRA:
between
the
need
to
ensure
that
there
is
effective protection
of
rights
within
the
domestic
sphere
and the need
to
preserve the constitutional
boundaries
of
the
UK's
uncodified constitution.
With
regard
to
a
more international
sphere,
it
is
submitted
that
other
jurisdictions
could
learn
from
the
UK
courts'
adoption
of
the
contextual
approach
when
attempting
to
achieve
an
appropriate
balance
between
judicial
restraint
and
incorporation
of
human
rights,
though
that
is an
argument
for another
day.
1* LLB
Candidate, Queens University, Belfast.
This article represents
an
edited
version
of
the
Author's
dissertation.
The
Author
would
like
to
thank
Dr
Rory
O'Connell
for
his
helpful
comments
on
earlier
drafts
of
this
article. The
Author would also
like
to
thank
Hannah
Russell
for her tireless
efforts
and
assistance during
the
editing
process,
and
his parents
Mary
and
Terry
McCleave.
Hereafter
referred
to
as
'HRA'.
© 2008
Terence McCleave
and
Dublin University
Law Society
The
UK
Human
Rights
Act
1998
The
Human
Rights
Act
The
HRA
has
been
described
as
a
typically
"British
compromise."
2
While
the
Act's
main aim
is
to
"weave
' '3 the
rights
contained
in
the
4 into the
"fabric"
'5
of
the
domestic
legal
system,
it
also
attempts
to
preserve
the
constitutional boundaries
of
the
UK's
uncodified
Constitution
and
in
particular
the
doctrine
of
parliamentary
sovereignty.
6
This
compromise
is
reflected
in
the
Act's
two
main
remedial
provisions, namely
section
3
and section
4.
Section
3(1)
of
the
HRA provides that
"so
far
as
it
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
right."
This
provision
has
been
described
as
a
"new
and
dynamic
endeavour
' 7
as
it
is
intended to
add
a
new level
of
both substantive
and
practical
protection
to
fundamental
rights, which
has
hitherto been unseen
in the
domestic
context.
In
seeking
to
protect
these rights,
section
3
actively
encourages
the
courts to
"imply
safeguards
of
human rights"
8 into
legislation
whilst
also
acting
to
curb
excessive
use
of
executive
and
legislative power,
especially
in
situations
involving minority
or
individual rights.
Furthermore,
section
3
is
not
qualified
by any
requirement
of
a
'reasonable'
interpretation;
instead it
conveys that
in
most situations
a
Convention-compatible
interpretation
will
be
achievable
and thus
that
primary
rights
will
prevail.
Nevertheless,
whilst
section
3
endeavours
to
achieve one
of
the main
aims
of
the
HRA,
namely
effective
protection
of
rights,
the
phrasing
of
section
3
is
indicative
of
the
fact
that
a
Convention-compatible
interpretation will
not always
be
possible.
"So
far
as
it
is
possible
to
do
so"
denotes
that
the
interpretative obligation
is
circumscribed
and
in
certain
cases
the
judiciary
will be
unable
to
comply
with section
3.
By
attempting
to
define
the
parameters
of
the
interpretative obligation
in
such
terms,
the
Act
clearly
seeks
to
convey
to the
judiciary
their
continued
role
within
the
2
Tom
Campbell,
"Incorporation
Through
Interpretation"
in
Sceptical
Essays
on
Human
Rights
(Oxford
University
Press,
2001), at
79.
3Anthony
Lester, "The Human Rights Act
-
Five
Years
On"
(2004)
3
European
Human
Rights
Law Review
258-27 1,
at
258.
4
Hereafter
referred
to
as
'ECHR'.
5
Lester, note
3,
at 258.
6
Parliamentary
sovereignty means
that Parliament
is
the
only
institution
that
can
make,
or
unmake
law.
7
Keir
Starmer,
"Two
years
of
the Human
Rights
Act"
(2003)
1
European
Human
Rights
Law
Review
14-23,
at
15.
8
Lester, note
3,
at
260.
20081

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