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The Extent To Which The Human Rights Act Of 1998 Strengthened The Rule Of Law In The U.K. Constitution

3695 words - 15 pages

The Extent to Which the Human Rights Act of 1998 Strengthened the Rule of Law in the U.K. Constitution

The Human Rights Act 1998 (HRA), an Act introduced to give effect to
rights from the European Convention on Human Rights (ECHR) in domestic
legislation. Its introduction has affected many legal areas;
especially the conceptions of the rule of law and their place in the
UK constitution. To understand the effect of the HRA, it is first
necessary to establish the initial status of these two concepts.
Having established this, the extent of the impact of the HRA can be
examined.

Rule of law and HRA

The concept of the rule of law has traditionally attracted two
different interpretations.[1] In terms of the impact of the HRA, each
interpretation, namely formal and substantive, invoke different
outcomes concerning their consequent effect upon the UK constitution.

The formal approach adopted most prominently by Dicey, holds the
fundamental tenet, ‘those who make and enforce the law are themselves
bound to adhere to it’.[2] It is less concerned with the actual
content or ‘justness’ of the laws themselves, but more in ensuring
that there is equal subjection of all citizens under the given system.
This positivist ideology separates the question of what law is, and
what it ought to be.[3] Raz went onto add that laws created under the
standard of the formal interpretation should be capable of acting as a
guide to an individual’s conduct. They should be prospective, guided
by clear rules, with open access to the courts (containing an
independent judiciary) and relatively stable.[4] This is not an
exhaustive list of what the formal interpretation entails, but the
latter two characteristics are of most interest to the HRA, especially
Section 6. It introduces obligations for public bodies that were not
previously evident in common law or statute. As such this raises issue
with the continuity or stability of law.

Also of relevance are Dicey’s views on the status of common law within
the rule of law. He felt there was no need a Bill of Rights, because
the general principle of the constitution is the result of judicial
decisions determining the rights of the private person.[5] Effectively
what is being stated here is that the common law is the guardian of
the rights of the individual, as shown in the case of Derbyshire
County Council v Times Newspapers Ltd.[6] Dealing with the right to
express criticism of publicly elected bodies, the Court of Appeal held
that the questioning by a newspaper of the official dealings of the
council was legitimate criticism. Common law was the tool used to
reach the conclusion, with it being decided that it was contrary to
the public interest for public bodies to have a common law right to
sue for libel. Although, the Court of Appeal did take guidance from
...

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