Authored By: Sara Hirji
University of Warwick
Introduction
The Human Rights Act 19981sought to incorporate the European Convention on Human Rights2into domestic law, which enabled UK courts to directly adjudicate human rights matters. This significantly influenced the relationship between the judiciary and parliament, with some critics arguing that the interpretative authority conferred upon judges under the Human Rights Act, particularly through sections 3 and 43, undermines the doctrine of parliamentary sovereignty and enables the judiciary to function as de facto legislators. This perspective has fuelled advocacy for substantial reform or complete repeal of the act, particularly among those concerned about judicial overreach and upholding parliamentary supremacy.
This article will critically assess the limitations of sections 3 and 4 of the Human Rights Act, the scope of judicial powers and whether they are justified. The article aims to demonstrate that whilst the Human Rights Act has enhanced judicial powers, it operates within a framework that seeks to preserve the principle of parliamentary supremacy by limiting said powers through legislative design and judicial self-restraint.
Section 3: compatibility
One section of the Human Rights Act that grants the court controversial power is section 3, which states: “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 rights.”4 Lord Steyn explained that the interpretative obligation under Section 3 is an “emphatic adjuration” from Parliament5, which specifically imposes a duty on courts to find any possible interpretation that aligns with Convention rights, not simply a “reasonable interpretation” of language6. As a result, some critics argue that moving beyond the scope of “reasonable interpretations” transforms section 3 into a “radical instrument,” authorising judicial lawmaking7. To exemplify this, Ekins and Gee reference the use of section 3 in Ghaidan v Godin-Mendoza [2004].8In this case, Lord Nicholls stated that the courts have adopted an application of section 3 that ensures that judges do not “adopt a meaning inconsistent with a fundamental feature of the legislation.”9 However, Ekins and Gee argue that the court departed from the words of the other statute and from what the legislature intended in enacting those words, thus constituting lawmaking.10 This effectively undermines the principle of parliamentary sovereignty. Dicey explained parliamentary sovereignty as the right of Parliament to make or unmake any law that no other body can override or set aside;11 as section 3 enables judges to alter the law instead of applying Parliament’s decision through reasonable interpretation, they arguably override laws made by parliament.
Does section 3 really compel parliament so strongly?
However, it is arguable that section 3 does not grant judges the power to override laws. Lord Neuberger stated that any dialogue between the judiciary and legislature must be constrained to ensure parliamentary supremacy;12 arguably, section 3 satisfies this requirement. Dialogue theory, in application to section 3, suggests that when judges use this section to interpret
legislation in a way that aligns with Convention rights, they send a “signal” to Parliament indicating that the original statute may be incompatible.13 This signal invites Parliament to respond, by either confirming, amending, or rejecting the judicial interpretation through new legislation. A dialogue is thus said to exist but is constrained by parliament; the judiciary initiates the conversation, but Parliament has the final say, preserving its legislative authority.
Section 4: declarations of incompatibility
Section 4 of the Human Rights Act similarly grants courts certain powers that some argue undermine parliamentary sovereignty. This section allows courts to issue a declaration of incompatibility when legislation cannot be interpreted in a way that aligns with the European Convention on Human Rights.14 Significantly, such a declaration does not have the legal force to strike down the legislation, nor does it prevent it from being enacted or remaining in effect.15 Nevertheless, critics argue that Section 4 expands the scope of judicial authority too far, allowing courts to decide on matters traditionally viewed as political decisions reserved for Parliament or the government rather than the judiciary.16 It may further be argued that section 4 results in significant political pressure on Parliament to comply with declarations of incompatibility, potentially undermining parliamentary supremacy by restricting Parliament’s ability to legislate freely17. However, a more compelling argument is that declarations of incompatibility do not impose pressure on the government to amend the law;18 rather, a declaration of incompatibility results in “a wound to Parliament’s handiwork” which slightly alters Dicey’s idea of the supremacy of Parliament, but does not erode it.19
Lady Hale’s opinion on section 4
An alternative perspective is that Parliament ultimately retains the option to take no action in response to a declaration of incompatibility.20 This view is supported by Lady Hale, who observed that upon such a declaration, “Government and Parliament then have to decide what action to take to remedy the matter.”21 However, as Mallory and Tyrell point out, the use of the word “then” still carries an implication that Parliament is compelled to respond, despite there being no legal obligation to do so.22
This is exemplified by the prolonged delay in resolving the issue of prisoner voting.23 The authority of a declaration of incompatibility, therefore, does not lie in legal enforcement but in its ability to prompt democratic reform through Parliament.24 To argue that judges have overstepped their role by issuing such declarations, after first attempting to interpret legislation compatibly with human rights, misunderstands the purpose of the Human Rights Act, which is to ensure that public authorities and legislation comply with its provisions.25
Therefore, Section 4 of the Human Rights Act does not erode parliamentary sovereignty, as it respects the constitutional principle that Parliament is the supreme legislative authority by ensuring that declarations of incompatibility carry no binding legal force. Courts do not have the power to invalidate legislation, they merely flag inconsistencies with the European Convention on Human Rights , leaving it entirely up to Parliament to decide whether to act. This preserves the balance between judicial oversight and democratic accountability and thus, reform of the Human Rights Act is not needed.
Reform proposals of the Human Rights Act
The argument that the Human Rights Act undermines parliamentary sovereignty and allows judges to act as legislators is a key motivation behind proposals for reform. Critics assert that Section 2- which requires UK courts to take into account any relevant cases decided by the European Convention on Human Rights ,26 and section 3, significantly influence the meaning and application of legislation by compelling courts to interpret statutes in ways compatible with European Convention on Human Rights.27 This judicial interpretive power, especially under Section 3, has been perceived by the government and reform advocates as exceeding the judiciary’s proper role, creating a “democratic deficit” whereby unelected judges effectively shape laws instead of Parliament.28 Additionally, reform has been proposed to end the courts’ increasing reliance on Strasbourg jurisprudence, as it erodes our own common law traditions and judicial practices.29 Furthermore, there is an issue of Supreme Court rulings directly contradicting the democratic will of parliament, suggesting that judicial powers have extended to the point where decisions are repeatedly “flying in the face of common sense” and ought to be made by Parliament, not the courts.30
Arguments against reform
However, there are further convincing arguments against reform or repeal of the Human Rights Act. JUSTICE found the Human Rights Act to be functioning well overall,31 with even the independent Human Rights Act review recommending minimal change for section 3 despite calling for reform.32 Furthermore, in response to this report, critics of reform, including legal organizations like the Law Society, argue that proposed changes risk reducing accountability, legal clarity, and access to justice.33 Additionally, attempts to diminish the courts’ engagement with European Court of Human Rights case law could lead to uncertain and inconsistent rights interpretations, as warned by Lord Carnwath and Professor Ekins.34 The fear that reform could lead to eventual withdrawal from the European Convention on Human Rights underscores concerns about the UK’s global human rights standing.35 Therefore, whilst the desire to recalibrate the balance between courts and Parliament is understandable, reform or repeal driven by concerns over judges being granted too much power through the Human Rights Act is not sufficiently warranted.
In conclusion, whilst the Human Rights Act has undeniably enhanced the role of the judiciary in interpreting legislation to be compatible with human rights standards, it does not fundamentally undermine the constitutional principle of parliamentary sovereignty. Sections 3 and 4, though granting courts avenues to ensure rights protection, are carefully framed to respect Parliament’s legislative authority. Section 3 encourages interpretations that align with Convention rights but does not allow judges to rewrite laws, whilst Section 4 explicitly preserves parliamentary supremacy by withholding any power to invalidate legislation. Moreover, evidence demonstrates that Parliament remains free to respond or ignore judicial signals– legislative authority is therefore retained. Reform proposals based on fears of judicial overreach risk eroding the very protections the Human Rights Act was designed to uphold; thus, proposals for reform or repeal are arguably unconvincing.
Table of Legislation
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (European Convention on Human Rights) (1950)
Human Rights Act 1998
Table of cases
A and Others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
R v A (No2) [2001] UKHL 25, [2002] 1 AC 45
R (F) v Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 AC 331 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
Bibliography
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1 Human Rights Act 1998 (HRA 1998).
2 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (EUROPEAN CONVENTION ON HUMAN RIGHTS ) (1950).
3 HRA 1998, s3-s4.
4Ibid, s3(1).
5 R v A (No2) [2001] UKHL 25, [2002] 1 AC 45, [44]
6Ibid.
7 Richard Ekins and Graham Gee, ‘Submission to the Joint Committee on Human Rights 20 Years of the Human Rights Act’ [2018] para 18.
8 Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557; ibid.
9 Ghaidan (n 8), [33].
10 Ekins and Gee (n 7).
11 A.V. Dicey, An Introduction to the Study of the Law of the Constitution (10th edn, first published 1885, London: Macmillan 1959), 38
12 Fergal F. Davis, ‘Parliamentary Supremacy and the Re-Invigoration of Institutional Dialogue in the UK’ (2014) 67 Parliamentary Affairs 137, 138.
13 Alison Young, ‘Parliamentary Sovereignty and the Human Rights Act’ (Hart Publishing, 2009) 10. 14 HRA 1998, s2.
15 Ibid s6 (a)-(b)
16 The Constitution Committee, The new constitutional relationship between the judiciary, government and Parliament (HL 2006-2007, 151-VI) para 27.
17 Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 321.
18 Andrew Le Sueur, Maurice Sunkin and Jo Murkens, Public Law Text, Cases and Materials (3rd edition, OUP 2016), 567.
19 Ayesha Riaz, ‘Sections 3 and 4 of the Human Rights Act and their impact on the United Kingdom’s constitutional arrangements’ [2021], 1 QMLJ 133, 145; Anthony Bradley, ‘The sovereignty of Parliament form or substance?’ in Jeffrey L. Jowell and Dawn Oliver (eds), The Changing Constitution (vol 6, OUP 2007) 55-56.
20 Conall Mallory and Hélène and Tyrrell, ‘Discretionary Space and Declarations of Incompatibility’ [2021] 32 King’s Law Journal 466, 492.
21 A and Others v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, [220] (Baroness Hale).
22 Mallory and Tyrrell (n 22).
23 Neil Johnston, ‘Prisoner’s voting rights’ (Research Briefing paper No. 7461, House of Commons Library, 9 August 2023) https://researchbriefings.files.parliament.uk/documents/CBP-7461/CBP-7461.pdf > accessed 23 April 2025.
24 Mallory and Tyrrell (n 22), 493.
25 Ibid.
26 HRA 1998, s1 (a)-(d)
27 Dominic Grieve, ‘European Convention on Human Rights: current challenges’ (Lincoln’s Inn, London, 24 October 2011) https://www.gov.uk/government/speeches/european-convention-on-human-rights current-challenges> accessed 25 April 2025; Ekins and Gee (n 7)
28 Ministry of Justice, Human Rights Act Reform: A Modern Bill Of Rights A consultation to reform the Human Rights Act 1998, (CP 588, 2021) paras 170-172.
29 Ibid para 9.
30 Adam Tucker, ‘Taking sovereignty seriously’ in Frederick Cowell (ed), Critically examining the case against the 1998 Human Rights Act (1st edn, Routledge 2017) 100; Prime Minister responded to R (F) v Secretary of State for the Home Department [2010] UKSC 17, [2011] 1 AC 331.
31 JUSTICE, ‘Briefing on the Bill of Rights Bill’ (2022) para 3.
32 Secretary of State for Justice, The Independent Human Rights Act Review – Executive Summary (CP 587, 2021) para 43.
33 The Law Society, Stakeholder Submission to the UN Human Rights Council’s Universal Periodic Review— United Kingdom (41st session, 2022) para 2.
34 Justice Committee, Oral evidence: Human Rights Act Reform (HC 2022-2023) HC 1087, Q95, Q99. 35 Philippe Sands and Helena Kennedy, ‘In Defence of Rights’ (London Review of Books, 3 January 2013) https://www.lrb.co.uk/the-paper/v35/n01/philippe-sands/in-defence-of-rights> accessed 25 April 2025.
