Accountability and the Human Rights Act 1998
The HRA 1998 is regarded as an example of a ‘commonwealth’ model of constitutionalism.[536] The HRA 1998 does not empower the judiciary to strike down legislation that contravenes human rights.
Instead, it creates a series of legal and political controls over the executive and the legislature. These controls are found in ss 3, 4, 6 and 19 of the HRA 1998. Legal control is exerted over administrative acts through s 6, which makes it unlawful for a public authority to act contrary to Convention rights. This control is easily classified as a form of accountability in the narrow sense. Public authorities are held to account for their actions to another, the judiciary. There are legal consequences should their actions fail to comply with Convention rights. What is harder to ascertain is whether the legal and political controls over Acts of Parliament can be accurately described as forms of accountability.The strongest form of legal control over Acts of Parliament is found in s 3 of the HRA 1998, which requires courts, so far as it is possible to do so, to read and give effect to Acts of Parliament in a manner compatible with Convention rights. However, there are difficulties that arise when classifying this as a form of accountability. Bovens' model of accountability has three components: (i) a forum that either investigates or passes judgment; (ii) an obligation placed upon the actor to account for or justify his actions; and (iii) possible consequences placed by the forum upon the actor held to account for his or her actions. S 3 provides a means through which actions of the legislature can be scrutinized by another body, the judiciary. However, when reading legislation so as to comply with Convention rights, the court does not focus upon the actions of the legislature, holding them to account for their inability to legislate so as to protect Convention rights.
Rather, the focus of the decision of the court is upon the words of the legislation, investigating whether its provisions are capable of being read so as to protect Convention rights.[537] There is no obligation placed upon the legislature to explain or justify its conduct; its role, instead, is to argue that the legislation in question is compatible with Convention rights. A possible exception to this focus is found in the scrutiny of the actions of Parliament in Animal Defenders International v Secretary of State for Culture Media and Sport concerning the enactment of s 321(3) of the Communications Act 2003, where the court scrutinized the conduct of Parliament and the Joint Committee of Human Rights, reaching the conclusion that the legislative provision in question was not incompatible with Convention rights.[538] This difference may be explained as the Broadcasting Act 2003 was enacted following a s 19(1)(b) statement, where the Minister promoting the bill was not able to state that it was compatible with Convention rights but that, nevertheless, the government wished to enact the legislation in question.Second, it is not clear that the legislature faces any consequences as a result of its legislation being interpreted so as to comply with Convention rights. It is true that Convention-compatible interpretations of legislation may mean that policy objectives of the legislation in question can no longer be achieved. However, given that most legislation is initiated by the government, this may be regarded more as a sanction for the government than for the legislature. In addition, the government called upon to argue that legislation is compatible with Convention rights may not be the government responsible for the legislation in question. It may not be their policy objectives that are called to account. In addition, obligations that arise from Convention-compatible interpretations of legislation may fall upon private individuals as opposed to the government or Parliament.
For example, the Convention-compatible reading of legislation in Ghaidan v Godin-Mendoza imposed a legally enforceable obligation upon Mr Ghaidan, the landlord, to extend a protected tenancy to the same-sex partner of a deceased protected tenant. It was Mr Ghaidan and not the government that faced consequences for the legislator’s failure to fulfil its human rights obligations.Finally, it is possible for the legislature to avoid accountability by enacting legislation specifically designed to counteract a Convention-compatible re-reading of legislation by the courts. S 3 places courts under a limited obligation—to read legislation in a manner compatible with Convention rights ‘so far as possible’. Ghaidan v Godin-Mendoza states that it is not possible for the courts to read legislation in a manner compatible with Convention rights where to do so would contradict a fundamental feature of that legislation. As such, it is possible for the legislature to undermine the legal control of the courts by enacting legislation, a fundamental feature of which is to re-instate the wording of the legislation in question. Indeed, it is possible for the legislature to go further and to overturn the HRA 1998. It is hard to conclude that the HRA 1998 provides an effective form of accountability over the legislature given this power of the legislature to effectively avoid any consequences and to undermine the very mechanism that may be used to bring it to account for its actions.
The final form of control over Acts of Parliament is found in ss 4 and 19 of the Act, which facilitate political controls. S 19 requires that the minister in charge of a bill must, before the second reading of the bill, make a statement to Parliament either that the bill in question is compatible with Convention rights,[539] or that the government wishes to enact the legislation anyway, despite the inability to assert that the bill is compatible with Convention rights.10 These statements help to facilitate political debate which focuses upon human rights, assessing the impact of legislation upon fundamental human rights.
Parliament is aided in these debates by the work of the Joint Committee on Human Rights, one of whose roles is to produce reports concerning the impact of legislation on Convention rights. S 4 of the HRA 1998 empowers courts of the level of the high court and above to issue a declaration of incompatibility when the court is unable to read and give effect to legislation in a manner compatible with Convention rights. Declarations of incompatibility do not affect the legal force, validity or effect of legislation declared incompatible with Convention rights. However, political pressure may ensure that the government responds to declarations of incompatibility, amending legislation so as to ensure its compatibility with Convention rights. In addition, individuals still retain the right to petition the European Court of Human Rights. If an individual succeeds before the Strasbourg Court, the government will be placed upon an obligation in international law to remedy the breach of Convention rights and may be required to pay damages.These political controls are also difficult to classify as complying with the ideal of accountability. It is hard to identify a forum to which the legislature is held
10 HRA 1998, s 19(1)(b).
to account for its actions. Political debate in the Houses of Parliament may be regarded as a forum in which the government is held to account for its actions by the legislature. It is, however, difficult to classify the electorate, or the media institutions who report on political events, as a specific forum. Questions may be asked in both Houses of Parliament and the Joint Committee on Human Rights is able to question ministers and frequently asks questions of ministers regarding their response, or lack of one, to declarations of incompatibility and negative judgments of the Strasbourg Court.[540] As such the government may be called to account to explain its actions. Problems arise with regard to the possible consequences for failing to protect Convention rights.
The government may face consequences of losing political support either in the Houses of Parliament or with the electorate if it fails to protect Convention rights. However, as recent events concerning prisoner voting affirm, support may also be won for standing firm in the face of pressure from ‘European’ institutions and continuing to support legislation deemed by the Strasbourg Court to be incompatible with Convention rights.[541] In addition, as the HRA 1998 is not legally entrenched, it is possible for the government to enact legislation to overturn its provisions. Despite this, the government does respond to the majority of declarations of incompatibility, and decisions of the Strasbourg Court, by modifying legislation to ensure its compatibility with Convention rights.[542]In conclusion, although the HRA 1998 provides for a range of political and legal controls over administrative acts and legislation, it is difficult to regard these controls as providing an effective means of holding the government to account for its legislative actions. The more traditional legal control over administrative actions of the government and public authorities provides the most effective means of accountability. These conclusions may explain the mixed reactions regarding the success of the HRA 1998. In particular, it may explain why advocates of political protections of human rights are nevertheless sceptical as to whether the enactment of the HRA 1998 has improved the protection of human rights in the UK. Although the HRA 1998 may provide for a series of political controls, the inability of these controls to match the ideals of accountability may explain why it is still regarded by some as futile.[543]
B.