Globalizing Justice: Critical Perspectives on Transnational Law and the Cross-Border Migration of Legal Norms

11. Blurring Sovereignty: The Human Rights Act of 1998 and British Law

CHAPTER ELEVEN Blurring Sovereignty The Human Rights Act of 1998 and British Law MARY L.VOLCANSEK Many nations voluntarily abdicated a measure of sovereignty in the late twentieth century as regionalism and globalization took hold, and the Council of Europe that promulgated the European Convention on Human Rights (ECHR) in 1950 represents one example of that trend.The United Kingdom ratified the convention in 1951, but it was not incorporated into U.K. law and therefore not directly applicable in a U.K. court until October 2000. This chapter examines how British sovereignty was blurred by the European Convention on Human Rights prior to its incorporation into U.K. law in 2000 by the Human Rights Act of 1998 and what changes have been wrought in the intervening years. Observers in the United Kingdom predicted an executive authority trampling individual rights without incorporation of the convention or, conversely, an activist judiciary usurping the authority of Parliament once incorporation was accomplished. A tentative appraisal of the validity of those competing visions also will be offered. Similarly extreme predictions were made in the United Kingdom as it entered the EU (then the European Economic Community, or EEC) in 1973, and a vast literature has been generated to explain how and why the various national courts in the EU accommodated the EU treaties, secondary legislation, and decisions by the European Court of Justice into domestic law.1 Each nation and its national judiciary responded differently, and the U.K. judges charted their own unusual course to bring domestic law into 201 202 GLOBALIZING JUSTICE line with that required by EU membership.2 A similarly unconventional route could naturally be expected as portions of the ECHR were incorporated into British law.Was passage of the Human Rights Act of 1998 “a landmark in the constitutional history of the nation,” as Christopher Jenkins asserts,3 or was it what Mark Tushnet labels a mere weak form of judicial review in which “legislative majorities can displace judicial interpretations”?4 This section will assess those evaluations by, first, briefly treating the concept of parliamentary sovereignty and then addressing the ECHR and its incorporation by the Human Rights Act. Next, the record of U.K. courts on protecting rights before and after the Human Rights Act took effect on October 2, 2000, will be examined to ascertain if there are, indeed, significant differences in the treatment that petitioners receive in them. National human rights regimes generally have been achieved through pressure from NGOs such as Amnesty International, along with citizen activities5 international community pressure,6 or through transnational movements.7 The U.K. experience involved none of those. Rather, the process of expanding rights and ultimately incorporating aspects of the ECHR was led by legal elites.That unusual course stands as particularly puzzling because the “British legal culture and the judiciary are remarkably conservative,”8 and both are wed to the principle of parliamentary sovereignty. Charles Epp has proposed that, contrary to other explanations, rights revolutions rely on judicial attention , judicial support, and judicial implementation, but there must be legal mobilization to place cases before the judges.9 The Epp model clearly explains the U.K. experience. PARLIAMENTARY SOVEREIGNTY The basic foundation of the nation-state as conceived in the sixteenth century was the notion of absolute sovereignty.10 When referring to sovereignty today, most people have in mind the 1648 Westphalian notion that grants nations the authority to exercise a monopoly of power within their borders and prevents any nation from intervening in the domestic affairs of another.11 In the United Kingdom, sovereignty has been equated with Parliament and usually relies on the definition offered by A. V. Dicey in 1885: Parliament holds the “right to make or unmake any law whatever,” and “no person or body is recognized by the law of England as having a right to override or set aside” the laws that it passes.12 Notably, however, no Act of Parliament acknowledges its supremacy; rather, parliamentary sovereignty has as its source a “judicial recognition of the historical fact that England has two sovereigns, who share power, and that there is no higher authority than these two sovereign authorities coming together formally to agree to a measure.”13 Parliamentary sovereignty was limited, prior to the passage of the Human 203 BLURRING SOVEREIGNTY Rights Act of 1998, by two other developments in the last quarter of the twentieth...