Conclusion
The HRA 1998 establishes both legal and political mechanisms for checking the actions of public authorities with regard to human rights, providing a means of control over executive and legislative actions.
However, this chapter has argued that neither form of check is ideal. Ss 3 and 4 may enable courts to check legislation, but the use of deference and the need to determine the extent to which the court can read and give effect to legislation so as to render it compatible with Convention rights may weaken accountability. Judicial decisions may focus more on the relative institutional and constitutional features of the legislature, the executive and the scope of interpretation than upon an assessment of human rights. This detracts from accountability both in terms of the primary control by the courts and in terms of the extent to which legal accountability mechanisms will provide an incentive to public authorities to ensure their actions are compatible with Convention rights. Political checks may also fall short of the requirements of ensuring effective accountability. There may be no clear forum in which the public authority is held to account. In addition, there are often no clear sanctions for human rights breaches. Accountability may often be more a matter of political preference than a focus on human rights.This chapter has also examined the extent to which the HRA 1998 upholds a normative theory of accountability through investigating the culture of justification. The culture of justification advocates a theory of human rights protection through an application of proportionality and deference. As well as pointing out ways in which English law does not fully adhere to this theory, the chapter has argued further that a clearer understanding is required of the precise conceptions of proportionality and deference that should be deployed by the courts. A lack of clarity about these legal doctrines, and their relationship to one another, detracts from accountability in two ways.
Firstly, a lack of clarity detracts from the transparency needed to enhance accountability. If the principles to which a public body is to be held to account are unclear, then it is harder to ensure that public authorities are adhering to these principles. Second, this lack of clarity may mean that more time is focused on determining the standard to which the public authority should be held to account than on determining whether the public authority has met this standard, detracting from the ability to ensure human rights are adequately adhered to.Moreover, the chapter has questioned normative theories of accountability. Our analysis of human rights adjudication under the HRA 1998 argues that the culture of justification needs to be supplemented by a theory as to whether the judiciary should be the primary or the secondary decision-maker for human rights issues, as well as a theory as to the nature of human rights. Without these additions, it may be difficult for the theory of adjudication advocated by the culture of justification to achieve its aim of facilitating accountability. In a similar manner, normative theories of accountability may provide only a weak justification. The analysis suggests that accountability works better as a means to achieving a particular end as opposed to an end in and of itself.
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