Human Rights Act
The crucible of the case at bar is the applicability of the Declaration of Incompatibility clause of the Human Rights Act of 1998 or HRA. The honorable Breezer LJ is of the opinion that it is not. He made this conclusion on the fact that the Law in question was enacted before the HRA it was clearly written and left little room for interpretation. Furthermore, the lower court lacked the competence de la competence to make such a declaration of incompatibility. Finally, Breezer cites the lack of obligation for court to recognize jurisprudence from the European Convention on human rights and that the respondent is not a public authority.
We concur with the decision but dissent with some of the grounds. Section 3 subsection 1 of the HRA provides that; so far as it is possible to do so, primary legislation must be read and given effect in a away which is compatible with the Convention Rights. However, sub-section 2 of the same Section provides that it does not affect the validity, continuing operation or enforcement of any incompatible primary legislation. (Case Law) Therefore, a law found incompatible with the HRA remains valid unless a Declaration of Incompatibility is made .
In light of this mister Breezer asserts, If the court is satisfied that a provision is incompatible with a convention right and that the primary legislation concerned prevents removal of the incompatibility the court may make a declaration of incompatibility. However, Breezer cautions that this seeming unilateral power of the judiciary to overturn laws must be used with caution. Under common law the Judiciary is a co-equal branch of government along with the legislature and the executive. This grant of certiorari powers is also given to lower courts but they must exercise a becoming modesty when employing it if they should at all.
Respecting the coequality of the legislature, the high courts are reluctant to employ this power. Therefore, the law is clearly written with little room for interpretation and although it may be incompatible with the Convention it must stand unless Declared Incompatible by a higher court. In fact it is only in cases of “legislative overkill” that the higher court puts it’s foot down and makes a Declaration of Incompatibility Also, the court now makes a distinction between the true meaning vs the possible meaning in an effort to save a peace of legislation.
The European Human Rights Law Review concurs with Breezer and is of the opinion that the higher courts alone are empowered to make a “declaration of incompatibility” (EHRLR 1999, 3, 301-329). Even then legislation may be only be challenged directly in judicial review proceedings when it is alleged to contravene directly effective rights under the European Community Law . We dissent in the matter of the Court’s lack of obligation to recognize jurisprudence from the European Convention on Human Rights. Section 2 specifically provides the sources from which the court must take into account in deciding questions arising from the convention.
They are; (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention. The HRA clearly provides that Jurisprudence from the European Court of Human rights are clearly included in the sources of Jurisprudence for a case falling under the HRA.
Provided, that whenever made or given it is relevant to the proceedings in which that question has arisen. In this case if applicant can show the relevance of the jurisprudence he intends to present to the case at bar, the court has no choice but to admit it. The Human Rights Act of 1998 requires that the domestic courts take into account, but not that the necessarily adopt the European Jurisprudence on the application of Convention rights. The lordships , have clarified that domestic courts, in determining the applicability of European jurisprudence should grant an appropriate degree of latitude.
They further define appropriate by three factors; the subject-matter under consideration, the importance of the human rights in question and the extent of the encroachment upon the right. The court must then only intervene when it is “apparent” that Parliament has given insufficient weight to human rights In the case of Queen v Secretary of State for the Environment, Food and Rural Affairs and rural nature, the applicant Gerald Rabie argued that the company should be granted a declaration of incompatibility for the Countryside and Rights of Way Acts 2000 because it would cause an infringement of the company’s rights under the convention.
The court declined to grant the prayer because it would require a selective application and because a greater harm would be caused by its cancellation as opposed to the selective benefit that the company would be granted. Finally, we concur in the matter of the public or non-public character of the respondent. Section 6 subsection 3 provides that In this section a public authority includes a court or tribunal and any person certain of whose functions are of a public nature.
Excluding either House of Parliament or a person exercising functions in connection with proceedings in Parliament The respondent falls outside these categories and what is not included must therefore be excluded. As an aside section 4 of the HRA provides that; a declaration under this section does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given and is not binding on the parties to the proceedings in which it is made.
Thus, even assuming that the court grant the applicants prayer and grants a Declaration of Incompatibility, it will be of no moment. After all, the law such as it was still applies to the parties before the court. We therefore, conclude that Mister Breezer is correct is declining the prayer of the applicant. His grounds were correct save the one regarding the disinclination of the court to accept jurisprudence from the European Court of Human Rights. Thus, we concur with the decision. Sources Cited Human Rights Act of 1998.
Poplar Housing v Donaghue  QB 48 see the opinion of Lord Woolf R v Secretary of State for the Home department, ex parte Simms  2 AC 115 – 132 see opinion of Lord Hoffmann House of Lords Debate Vol 582 col 1272 3 November 1997. Lord Cooke of Thorndon, “The British Embracement of Human Rights” (1999) EHRLR 243 – 253 R v. Secretary of State for Employment. ex p. Equal Opportunities Commission  2 A. C. 1 A v Secretary of State for the Home Department  UKHL 56;  2 A. C. 68 (HL).