The Human Rights Act and Parliamentary Democracy

Abstract

The Human Rights Act 1998 is the culmination of an aggressive campaign for the incorporation into domestic law of the European Convention on Human Rights, a campaign in which the judges joined forces with other political activists. Variously described as 'brilliant';' 'a masterly exposition of the parliamentary draftsman's art';2 and even 'a thing of intellectual beauty',3 the Act has also been greeted as an 'ingenious compromise' between the 'maximalists' and 'minimalists', the former supporting a judicial power to invalidate legislation, as is the case in Canada.4 But although it is purported to reconcile in 'subtle' form the protection of human rights with the sovereignty of Parliament (a claim even more credible after an important but unsung Commons amendment), the Act also represents an unprecedented transfer of political power from the executive and legislature to the judiciary, and a fundamental re-structuring of our 'political constitution'.s As such it is unquestionably the most significant formal redistribution of political power in this country since 1911,6 and perhaps since 1688 when the Bill of Rights proclaimed loudly that proceedings in Parliament ought not to be questioned or impeached in any court or any other place. In the words of Baroness Williams of Crosby, we have crossed our 'constitutional Rubicon',7 at least to the extent that the courts may now declare a statute incompatible with Convention rights. The enactment of the Human Rights Act 1998 was marked by an unusually high quality of debate, particularly in the House of Lords, with powerful performances by the Lord Chancellor and Lord Lester of Herne Hill. The performance of the latter on one occasion was too much for Lord Campbell of Alloway, unaccustomed it seems to cerebral rather than ceremonial contributions in their Lordships' House. Lord Campbell was heard to protest (in a manner dubbed 'offensive' by Lord Ackner)8 about 'these escoteric lectures on law at this time of night', having 'never heard anything like this after dinner' in the 18 years he had been in the Lords.9 He had better get used to it: the law and the lawyers are about to dominate all the debates, at all times of the day and night, before and after every meal time. Indeed in the Second Reading Debate on this Bill in the House of Lords 'full of