Section 3 requires that courts give effect to legislation that is passed by Parliament ‘so far as it is possible to do so’ in a way that is compatible with the ECHR rights.

Please have a read through the information provided below and answer the question with relevant references.

The Human Rights Act (1998) (HRA) was established in 1998 in order to set out the fundamental rights and freedoms that everyone in the UK is entitled to. (EHRC, n.d) Surprisingly, it has only been in force since October 2000 with our rights before then being failed by British law due to the Magna Carta, Common Law and the 1689 Bill of Rights not giving individuals the basic rights that the HRA does. E.g The right to personal privacy and the right to protest.

The HRA incorporates the acts set out in the European Convention on Human Rights (ECHR) into British Law, ultimately meaning that cases can be brought to a British court rather than pursuing such a case in Strasbourg, which is where the European Court of Human Rights is located. Running parallel with this effect, the act requires all public bodies to protect an individual’s human’s rights whilst carrying out their public functions and ultimately means that Parliament needs to ensure that new laws are compatible with the rights set out in the ECHR.

However, because of parliament sovereignty, laws could technically be passed without them being compatible with the rights in question. Parliamentary sovereignty is a principle of the UK constitution and makes parliament the supreme legal authority in the UK with the ability to create or end any law it pleases.

When asked to look at the weakening of parliament sovereignty, Chris Grayling MP, argued within Conservatives Party’s strategy report (2006) that the HRA undermines the sovereignty of parliament and democratic accountability to the public through the application of section 3 on the HRA. Section 3 requires that courts give effect to legislation that is passed by Parliament ‘so far as it is possible to do so’ in a way that is compatible with the ECHR rights.

This may ultimately mean that judges could go to artificial lengths to make meanings of legislation reconcilable with convention rights and could promote cases that have an inconsistent interpretation with parliament’s legislative intentions.

Ultimately, parliament reigns sovereign and under section 4 of the HRA, judges can only highlight human rights abuses by making a ‘declaration of incompatibility’ but it is up to Parliament to exercise its sovereign power and respond to such declarations.

Does anyone else think that Chris Graylings MP argument is flawed?