Unlike most Bills of Rights and constitutional documents around the world, the HRA does not give the courts any power to strike down legislation and this is one the main criticism to the HRA. Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament.
The role of the Judiciary, as an arm of the state was enhanced widely, by the incorporation of the HRA in regard of the role of interpretation of the judges. In the case of Ghaidan v Ghaidan-Mendoza Concerned the Rent Act 1977 Schedule 1. This provided for a surviving "spouse" of an original tenant to become the statutory tenant. Could this legislation benefit persons in same sex relationships? The House of Lords used the HRA 1998 s.3 to read the legislation in a compatible way so that the survivor of such a relationship could become the tenant, such a reading of the legislation "went with the grain" or "the underlying thrust" of the legislation. Furthermore, despite the fact that the Act states that it applies to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect. This is because section 6(1) of the Human Rights Act defines courts and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens. For the first time in history the human rights were enforceable in British Courts. It created more awareness among public as what they were entitle for being borne as a human being. Many grave violations of human rights were given relief. This development in English law can be said as a positive move towards a better society where people are given protection against people who possessed power, thus preserving the rule of law. Section 1 and schedule I of the ACT set out the convention rights that are enforceable in UK. The role of the Judiciary, as an arm of the state was enhanced widely, by the incorporation of the HRA in regard of the role of interpretation of the judges. Section 3 requires the courts to interpret all legislation and delegated in a manner which is compatible with Convention rights “so far as it is possible to do so”. As a result any domestic provision which contradicts with the convention rights which can be abusive and detrimental towards the rights of people will be detected. As is by now well known, the new rule of statutory interpretation in HRA, s.3 is that primary and subordinate legislation (where primary legislation requires subordinate legislation to be framed in a certain way) must "be read and given effect in a way which is compatible with Convention rights" but only "so far as it is possible to do so". Where it is not possible, the higher courts may issue a "declaration of incompatibility" under s.4(2) of the HRA.
Some commentators are measured in their assessment of the impact of the HRA, arguing that the Act has had a perceptible but not necessarily radical impact on judicial decision-making. Gearty, for instance, has argued that ‘the majority of decisions [taken under the HRA] have been conservative, rejecting human rights arguments outright or incorporating them with such seamlessness into the pre-existing law that it has been hard to tell whether they have made any difference to the overall result.’ Human rights claims won in only 5 out of a total of 13 pre-HRA cases (admittedly a small sample). Of 132 post-HRA cases involving human rights claims, 35 were successful. The win rate for human rights cases in post-HRA years ranges from 0% to around 40% in any given year (see Figure 5). In other words, human rights cases have not had a very high win rate in the House of Lords. On average, only one in three human rights claims is successful. One further introductory point can be made about the HRA case law. There is no doubt that the HRA has established a “dialogue” between English judges and the European Court of Human Rights. The close analytical attention paid by the English courts to the European Convention on Human Rights case law is respected by the European Court of Human Rights and is inﬂuential on the way that it approaches English cases. An early example was the European Court of Human Rights’ refusal to follow its own decision in Osman v UK ((1998) 29 EHRR 245) in relation to negligence claims against the police following consideration of the discussion of Osman by the House of Lords in Barrett v LB Enﬁeld ( 2 A.C. 550). In Evans v UK (Judgment, 6 March 2006) the European Court of Human Rights upheld the English courts’ view that the statutory scheme of the Human Fertilisation and Embryology Act 1990 as compatible with Article 8 and made express reference to the discussion of proportionality in the Court of Appeal. This position can be contrasted with the situation in earlier decades where here was little or no dialogue and provisions of English law which were clearly incompatible with Convention rights were upheld by the English courts, found to be in breach in Strasbourg and were, eventually, remedied by legislation many years later. On the other hand, it is extremely difficult to isolate deﬁnitively the impact of the Human Rights Act on the judicial understanding of precedent. Firstly, the Act does not introduce any new rights but rather gives further effect to the rights set out in the European Convention on Human Rights in UK law. Any policy which breaches the Human Rights Act must be incompatible with one or more of the European Convention on Human Rights articles, and would have been so whether or not the Human Rights Act was in force. Secondly, many of the principles protected under the Act are also embedded into the common law (such as the right to a fair hearing and the rule of law) and EC law, whilst other rights, not covered by the Act, are protected by separate legislation such as UK discrimination legislation, the Data Protection Act 1998 and the Freedom of Information Act 2000. As section 2 explained, the courts have increasingly been prepared to recognise “common law constitutional rights” similar in content to those found in the Human Rights Act. So a single policy may be subject to a number of inﬂuences, of which the Human Rights Act is just one, all driving in a common direction. Even though there were drastic changes with the incorporation of the HRA , The constitutional doctrines such as parliamentary sovereignty and separation of powers curtail the full effectiveness of the HRA in protecting rights. Unless there is a revolution of these constitutional doctrines where the application can be deviated only when it necessary to do so and if the judges are not given wider enforcement powers to protect the convention rights , it can be concluded that the Human Rights Act 1998 has impacted on the judicial understanding of precedent, an adequate mechanism to guarantee fundamental rights in the United Kingdom is lacking. Therefore, the underlying features of the doctrine remain unchanged.
1. Wiktor Osiatyński. (2009) Human Rights and their Limits, Cambridge: Cambridge University Press. 2. Johnson N. (2004). The Human Rights Act 1998: a bridge between citizenship and justice? Social policy and society, Cambridge: University Press. 3. Wicks E. (2006) The evolution of a constitution; Eight key moments in British constitutional history. Hart Publishing. 4. Parliamentary joint committee Reports - Human rights, session 2009 - 2010. 5. http://www.legislation.gov.uk
[ 2 ].  UKHL 30
[ 3 ]. http://eprints.lse.ac.uk/24565/1/WPS2009-08_Shah_Poole.pdf [ 4 ]. http://eprints.lse.ac.uk/24565/1/WPS2009-08_Shah_Poole.pdf The Impact of the Human Rights Act on the House of Lords , Sangeeta Shah and Thomas Poole, LSE Law, Society and Economy Working Papers 8/2009 , London School of Economics and Political Science, Law Department [ 5 ]. http://www.bailii.org/eu/cases/ECHR/1998/101.html
[ 6 ]. http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd990617/barret01.htm [ 7 ]. http://www.ccels.cf.ac.uk/archives/issues/2007/hammond.pdf [ 8 ]. http://www.timeshighereducation.co.uk/story.asp?storyCode=201799§ioncode=26