with the convention if it was ambiguous43, whereas now this obligation is explicit with all legislation. A good illustration of s3 is R v A44, where the court interpreted the words of the act45, in permitting the alleged rape victim to be cross examined about her sexual history, in order to ensure a fair trial. However, this has been viewed as the most extreme application of Section 346 and in my view, this case actually goes too far as it errs on the cusp of becoming judicial legislation. Finally, the courts can now expressly take account of Strasbourg jurisprudence47. This has allowed the courts to expand areas using the HRA to create, for example, a breach of privacy48 after consideration of such Strasbourg jurisprudence as the case of Von Hannover v Germany49. Again this is a lot more beneficial than before in that it gives a way of filling in the gaps which would have been left under the old traditional method of protecting rights. In addition, the law on judicial review has been amended in light of the decision of Daly50, to include review on the grounds of proportionality and necessity.51 As stated above, one of the controversies surrounding the HRA was that Parliamentary sovereignty would be breached, which it is submitted has not taken place. Through careful drafting, Parliament has ensured its protection of Parliamentary sovereignty through mechanisms under the HRA, such as s4 of the HRA. S4 HRA gives the court the power to issue a declaration of incompatibility52, where it is impossible to give effect to the convention through statutory interpretation under S3 HRA53. This is effective in that it essentially puts Parliament on notice that part of an act needs to be repealed or amended as even if legislation is declared to be incompatible, legislation will still remain valid54 as there is no obligation on Parliament to amend the offending legislation55. In fact there have been very few declarations of incompatibility, showing the courts’ reluctance to interfere with Parliament 56 . An example of this is the case of Bellinger v Bellinger57, which concerned a transsexual, who wanted her marriage to be recognised as valid under Matrimonial Causes Act 1973 s 11(c), which only included males and females. This was seen by the courts as being incompatible with the convention, so the courts made a declaration of incompatibility58. However, this can be contrasted with Ghaidan v Medoza59 where the House of Lords did construe the words “living as man and wife” in the Rent Act 1977
to mean as if they were living as man and wife. This shows that, if the courts want they can stretch the application of s3 HRA so thinly as to effectively get around the protection afforded to Parliament by s4 HRA 1998. It was clearly not Parliament’s intention that the words were required, so in this aspect it can mean that s4 will sometimes fail in its protection of Parliamentary sovereignty. Once a declaration of incompatibility is made, then this then allows Parliament to amend legislation through the fast track procedure under s10 HRA. In this way, s.4 is clearly necessary for the protection60 and necessary recognition of Parliamentary supremacy61 and is effective in procuring the appropriate balance needed to guard Parliament’s sovereignty62. In conclusion, the Human Rights Act has given greater protection in English law of the rights and liberties of individuals than previous legislation, filling in the gaps in the law which left some rights unprotected. This is despite criticism by the media who, in most cases, misconstrue its application to cases. In particular, the judiciary have welcomed the HRA and it appears that they are using the Human Rights Act to its fullest potential, matching up to the demands placed on them by the Act63. As for the controversies, the majority of comments made regarding the concern that Parliamentary sovereignty and a politicised judiciary are largely unfounded, through the skill of the drafters of the act, although it is submitted that in some cases, S3 gives the judiciary too much power in enabling it to create judicial legislation which S4 lacks. However, Jack Straw has said that this was only the starting point64, so an extension of the Human Rights Act may come into effect in the near future.65
References cited 1 Steve Foster, Human Rights & Civil Liberties (2nd edn, Pearson Education Ltd, Dorset 2008) p.89. 2 Clayton & Tomlinson, The Law of Human Rights (OUP, New York 2000) p.27. 3 Foster, Op. cit., p.89. 4 Bailey and Taylor, Bailey, Harris & Jones: Civil Liberties Cases, Materials & Commentary (6th edn, OUP, New York 2009) p.13.
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