Whether the expanding power of the UK judiciary under the HRA threatens the Parliamentary Supremacy

Introduction

The HRA represents a transformative constitutional statute, incorporating ECHR rights into domestic law without granting full supremacy over parliamentary sovereignty. Sections 2 to 4 reflect the HRA’s foundational compromise: embedding human rights in domestic law while respecting parliamentary supremacy. It creates an ongoing constitutional dialogue between courts and Parliament. Section 2 creates a weak form of precedent, requiring courts to consider Strasbourg jurisprudence without being strictly bound by it. Section 3 is the most radical provision of the HRA. It imposes a strong interpretive duty on courts, even allowing them to depart from the plain meaning of legislation. Section 4 provides a constitutional safety valve, preserving parliamentary sovereignty while empowering courts to voice rights-based objections. The HRA has raised some concerns that those sections will threat the Parliamentary supremacy because it expands judges’ power in interpreting and applying legislation.

This essay argues that the sections 2, 3, and 4 of HRA give judges too much power and risk the Parliamentary supremacy. The discussion is structured around those three sections of HRA, while engaging with a critical analysis on those arguments and potential reforms to resolve this problem.

Section 2: Duty to Take into Account the European Court of Human Rights (ECtHR) Jurisprudence

Section 2, which requires judges to consider the decisions of the European Court of Human Rights (ECtHR), may undermine the sovereignty of Parliament. Section 2 is seen as providing a substantial role for judges in interpreting domestic laws in line with European human rights jurisprudence. The Parliamentary Supremacy requires that statutory interpretation in a system governed by parliamentary sovereignty must begin with the assumption that courts are trying to ascertain and give effect to Parliament’s intentions. However, as section 2 expressly requires judges to consider the decisions of ECtHR, it may encourage judges to elevate judicial interpretation over the will of Parliament, especially when the ECtHR’s decisions are seen as sometimes controversial with the UK Law. This makes the case decision unable to reflect the UK-specific values and traditions. Moreover, requiring courts to take into account ECtHR decisions could lead to judicial activism where judges feel compelled to prioritize ECtHR’s precedents rather than the UK case law. This could distort the original intent of legislation and cause the case decisions to conflict with public sentiment.

Some critics argue that section 2 has no binding effect on judges. So, it does not compel judges to follow ECtHR decisions but only requires them to take into account them. The judges remain the power to interpret the law independently. The primary responsibility of judges remains to interpret UK law. Judges’ discretion to follow the ECtHR shows respect for the parliamentary sovereignty. Moreover, section 2 ensures that UK law remains aligned with the international human rights norm while still allowing courts to engage in independent interpretation. It shows the UK’s obedience to the ECtHR’s rulings. Without section 2, the UK might risk being seen as out of step with the broader European legal framework, which could undermine its international reputation.

Although section 2 uses the language of discretion, the institutional logic of the HRA system means that UK courts rarely feel free to diverge from Strasbourg jurisprudence. Section 2 imposes implicit pressure on judges, creating a kind of de facto binding to the ECtHR. To maintain the consistency with precedents and the provisions, some judges may abandon their independent discretion but directly follow the precedent of ECtHR. It is a form of self-imposed constraint that sidelines Parliament’s legislative intent. So, the provision of section 2, “taking into account”, can create a tendency of “compulsory following” in which UK courts tend to follow Strasbourg jurisprudence slavishly. It restrains the national legal reasoning, undermining the Parliamentary supremacy. Besides, the protecting reputation cannot be an excuse for accepting the negative effects of this provision. Because the pursuit of international reputation cannot comprise the foundational principle of Parliamentary supremacy. Otherwise, it is not to show respect for international law but a kind of national imbalance in judicial policy between importing international law and preserving cultural domestic law. 

Section 3: Interpretation of Legislation in a Convention-Compliant Way

Section 3 is the most controversial of the three provisions regarding judicial power. It may cause the problem of judicial supremacy. It requires judges to interpret legislation in a manner compatible with human right acts, even if doing so needs to creative interpretation of primary legislation. It gives judges too much power to overrule the Parliament by amending or reinterpreting laws in a way that conflicts with what the Parliament intends. For example, the words “ as far as it is possible to do so” grant the judiciary the discretion to alter the meaning of legislation. It is a kind of judicial overreach, which undermines Parliamentary sovereignty. Moreover, section 3 may also cause the risk of judicial lawmaking. Although judges have interpretive flexibility when applying the statute, they cannot rewrite the legislation. But through section 3, judges may bypass the democratic process, creating a situation where unelected judges shape the law based on their thoughts in the name of HRA, regardless of public opinions and views of elected representatives. So, section 3 may significantly weaken the democratic process of legislation.

However, there are some counterarguments that the scope of interpretation of the legislation is limited. Only some special legislation will be interpreted in accordance with the European Convention on Human Rights. Section 3 does not allow judges to alter the substance of legislation. The interpretation is still bound by the text of UK law. For example, the word “possible” is not a compulsory requirement and it limits judges’ power to depart from the plain meaning of statutes. It effectively prevents rewriting the law and helps safeguard the principle of parliamentary sovereignty while enhancing the protection of individual rights.

The core of the counterargument is that section 3 does not force judges to interpret legislation in accordance with the European Convention on Human Rights. It is problematic because it ignores that section 3 imposes an encouraging effect and a strong, quasi-legislative obligation on the judiciary. Under those effects, judges may prioritize following the European Convention on Human Rights, rather than UK law. For example, in R v A (No 2), the House of Lords read additional provisions into the Youth Justice and Criminal Evidence Act 1999 to make it compatible with the European Convention on Human Rights, despite clear legislative intent. So, section 3 motivates judges to actively interpret the law in ways that extend beyond mere human rights considerations. It erodes the power of Parliament, encouraging judicial legislation. Moreover, sometimes in order to avoid making a declaration of incompatibility under s.4 which will be discussed in the next theme, courts are incentivised to stretch the meaning of legislation under s.3. This creates structural pressure on judges to align with the European Convention, potentially distorting domestic law. Therefore, although section 3 does not formally require domestic courts to follow ECtHR, it undermines the Parliamentary supremacy and democratic legislation process.

Section4: Declaration of Incompatibility

Section 4 permits judges to pass authoritative public judgment on the compatibility of parliamentary legislation with fundamental rights… This may be viewed as judicial encroachment into the domain of democratic policy-making. Through the declaration of incompatibility, courts could pressure Parliament to amend laws. Although section 4 itself cannot strike down any legislation, in political practice, it has significant constitutional and institutional pressure. It expands the role of the judiciary to form a threat to Parliamentary supremacy through its substantive intervention power on the legislation through its persuasive or even coercive effects. Because the declaration of incompatibility can act as a form of constitutional condemnation, which can become a symbolically powerful judicial device that leads to legal reform. For example, the House of Lords issued an s4 incompatibility statement on the Anti-Terrorism Act 2001, which caused a wide political reform. So, section 4 positions the judiciary as an arbiter of constitutional compatibility, effectively allowing it to publicly question the legitimacy of primary legislation. Section 4 extends judicial influence into the policy arena, in the name of human rights. It empowers the judiciary too much beyond the function of interpreting legislation, undermining Parliamentary supremacy. 

But, some counterarguments may think that a declaration of incompatibility is non-binding and merely signals a conflict between domestic law, so Parliament retains ultimate control. Parliament can decide whether to amend the law or leave it as it is, respecting its sovereign authority. As section 4 does not allow the court to trespass on legislative autonomy, and its function is not directive but dialogic, no reform will be held as long as the declaration is rejected. So, the Parliamentary supremacy is protected because the declaration’s effect is political, but not constitutional in the coercive sense.

Although the courts do not invalidate statutes under section 4, they wield considerable indirect influence over policy-making by publicly identifying legal flaws. The public declaration will impose great pressure to force parliament to mend the legislation. In that case, the legislation is not designed and issued according to the intent of Parliament but the subjective judgment of the judiciary. So, the declaration may lack direct legal effect, but its political and constitutional significance is often no less than that of judicial invalidation. Moreover, although the function of section 4 is merely to promote the dialogue between courts and Parliament, the dialogue is unequal and asymmetrical. Because the courts initiate the censure about incompatibility, and then Parliament responds under pressure. The judiciary can restrain Parliament by questioning the moral legitimacy of legislation in the name of human rights. Such declarations are politically potent; few governments can afford to be seen to ignore a formal judicial finding that legislation violates basic rights. So, section 4 expands judicial power too much and threatens Parliamentary Supremacy. 

Reform

To avoid the problems above, some reforms need to be done.

In terms of section 2, the language of ‘take into account’ has, in practice, led to an excessive deference to Strasbourg, amounting to judicial mimicry rather than judicial reasoning. So, the words “must take into account” should be changed to “may consider”. Such a requirement gives judges more freedom to reject the decision of ECtHR, based on the case condition, rather than being restrained by section 2. 

“As section 3 has enabled courts to reach strained and artificial interpretations… blurring the distinction between interpretation and amendment”. So, in section 3, “must interpret so far as possible” should be replaced by “plain reading” to ensure judges’ interpretation is bound by the legislative purpose.

Finally, section 4 may lack formal legal force, but its political and symbolic pressure can be significant enough to impair Parliament’s practical autonomy. What needs to be reformed is to emphasis the declaration is a kind of advice to policy, rather than a moral compulsory requirement. Such solution will protect Parliamentary supremacy by reducing the pressure on Parliament and emphasizing that Parliament still has eventual discretion on legislation.

Conclusion

While sections 2, 3, and 4 are non-binding, all of them can form a great influence on the legislation. Both sections 2 and 3 may encourage judges to distort the original legislative intent and public sentiment and even rewire the legislation, in the name of human rights. Besides, section 4 will put great pressure on Parliament to force Parliament to change the legislation through the moral censure in the declaration of incompatibility. All of those three sections may erode the Parliamentary sovereignty and risk the democratic process of legislation. Moreover, introducing reform in sections 2, 3, and 4 can ensure that judges’ interpretation of legislation is bound by the framework of Parliamentary legislation because it gives judges more freedom to consider UK-special law and reject the ECtHR case law if it is necessary. The reform will also reduce the pressure on Parliament when the judiciary issues a declaration of incompatibility.

Therefore, sections 2, 3, and 4 may cause the conflict with the principle of Parliamentary supremacy because it empowers judiciary too much in the process of interpretation of law and allows the judge to comment legislation subjectively in the name of human rights.

Reference(S):

Books

1. Craig P and de Búrca G, EU Law: Text, Cases, and Materials (6th edn, OUP 2015)
2. Elliott M, Parliamentary Sovereignty and the Human Rights Act 1998 (OUP 2009)
3. Elliott M, The Constitutional Foundations of Judicial Review (Hart 2016)
4. Feldman D, Civil Liberties and Human Rights in England and Wales (2nd edn, OUP 2002)
5. Goldsworthy J, The Sovereignty of Parliament: History and Philosophy (OUP 1999)
6. Hickman T, Interpreting the Human Rights Act 1998 (OUP 2011)
7. Jackson VC, Constitutional Interpretation: The Role of the Judiciary in Human Rights Law (Harvard Law Review 2005) 118(2)
8. Kavanagh A, Constitutional Review under the UK Human Rights Act (CUP 2009)
9. Klug F, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin 2000)
10. Masterman R, The Separation of Powers in the Contemporary Constitution (CUP 2011)
11. Masterman R, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (CUP 2011)
12. Phillipson G, Transforming Breaches of Human Rights into Legality: The Human Rights Act and the Limits of Interpretation (2003) 66(2) Modern Law Review 276
13. Smit J van Zyl, ‘Statute law: interpretation and declarations of incompatibility’ in Hoffman D (ed), The Impact of the UK Human Rights Act on Private Law (CUP 2011)
14. Young AL, Democratic Dialogue and the Constitution (OUP 2017)
15. Young AL, Parliamentary Sovereignty and the Human Rights Act (Hart 2009)

Journal Articles

1. Bradley A, ‘The Human Rights Act and Constitutional Principles’ (2003) 62 Cambridge Law Journal 578
2. Forsyth C, ‘Parliamentary Sovereignty and the Human Rights Act 1998’ (2000) 20(3) Oxford Journal of Legal Studies 557
3. Forsyth C, ‘The Impact of the Human Rights Act on the UK Constitution’ (2000) 116 Law Quarterly Review 373
4. Murray R, ‘Judicial Power and Parliamentary Sovereignty: The Case of the Human Rights Act’ (2010) 59(2) International and Comparative Law Quarterly 1
5. Phillipson G, ‘The Human Rights Act, “Dialogue” and Constitutional Principles’ (2003) 62 Cambridge Law Journal 712

Legislation and Cases

1. A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
2. R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45
3. Human Rights Act 1998, ss 2–3

1. Paul Craig and Gráinne de Búrca, EU Law: Text, Cases, and Materials (6th ed, OUP 2015)

2. Alison L Young, Democratic Dialogue and the Constitution (OUP 2017) 97

3.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 65

4.Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin 2000)

5.Roger Masterman, The Separation of Powers in the Contemporary Constitution (CUP 2011) 183

6.Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (OUP 1999) 246

7. Forsyth, C. (2000). The Impact of the Human Rights Act on the UK Constitution. Law Quarterly Review, 116(3)

8 Forsyth, C. (2000). ‘Parliamentary Sovereignty and the Human Rights Act 1998’. Oxford Journal of Legal Studies, 20(3)

9. Hickman, T. (2011). Interpreting the Human Rights Act 1998. Oxford University Press.

10. Elliott, M. (2009). Parliamentary sovereignty and the Human Rights Act 1998. Oxford University Press

11.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009)

12.Alison L Young, Parliamentary Sovereignty and the Human Rights Act (Hart 2009) 153

13.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 105–107

14.Jackson, V. C. (2005). Constitutional Interpretation: The Role of the Judiciary in Human Rights Law. Harvard Law Review, 118(2), 234-270.

15.Human Rights Act 1998, s 3

16. Murray, R. (2010). ‘Judicial Power and Parliamentary Sovereignty: The Case of the Human Rights Act’. International and Comparative Law Quarterly, 59(2)

17.Human Rights Act 1998, s 3

18.Elliott, M. (2009). Parliamentary sovereignty and the Human Rights Act 1998. Oxford University Press

19.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 81–83

20.R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45

21.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 97–100

22.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009) 129

23.Jan van Zyl Smit, ‘Statute law: interpretation and declarations of incompatibility’ in David Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011) 66

24. A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68

25.Roger Masterman, The Separation of Powers in the Contemporary Constitution (CUP 2011) 157

26.Hickman, T. (2011). Interpreting the Human Rights Act 1998. Oxford University Press

27.Roger Masterman, The Separation of Powers in the Contemporary Constitution: Judicial Competence and Independence in the United Kingdom (CUP 2011) 164

28.Gavin Phillipson, ‘The Human Rights Act, “Dialogue” and Constitutional Principles’ (2003) 62 Cambridge LJ 712, 717

29.David Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed, OUP 2002) 79–80

30.Mark Elliott, The Constitutional Foundations of Judicial Review (Hart 2016) 218–219

31.Gavin Phillipson, ‘The Human Rights Act, “Dialogue” and Constitutional Principles’ (2003) 62 Cambridge LJ 712, 720–721

32.Gavin Phillipson, ‘The Human Rights Act, “Dialogue” and Constitutional Principles’ (2003) 62 Cambridge Law Journal 712, 721

33.Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (CUP 2009)

34.Human Rights Act 1998, s 2

35.Gavin Phillipson, Transforming Breaches of Human Rights into Legality: The Human Rights Act and the Limits of Interpretation (2003) 66(2) Modern Law Review 276, 279–280

36.Mark Elliott, The Constitutional Foundations of Judicial Review (Hart 2016) 218