A Peculiarly British Protection of Human Rights?
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00564.x |
| Published date | 01 September 2005 |
| Date | 01 September 2005 |
| Author | Alison L. Young |
REVIEWARTICLE
A Peculiarly British Protection of Human Rights?
Alison L.Young
n
Conor Gearty,Principles of Human Rights Adjudication,Oxford:Oxford
University Press,20 04, 262pp,hb d35.00.
INTRODUCTION
The Human Rights Act 1998 has generated a plethora of academic literature dis-
cussing its desirability, the scope of its provisions and its impact upon both the
common law and the constitution. As the commentary develops, the temptation
to categorise debate as a battle between two distinct camps becomes irresistible.
For Nicol, the con£ict is fought between incorporationists and third-wave prota-
gonists.
1
Incorporationists desire a full constitutional protection of rights, where
the judiciary are empowered to overturn statutes that contravene Convention
rights. Third-wave protagonists believe that human rights are better protected
by a combination of parliamentaryand legal protections.Whilst incorporationists
regard the Human Rights Act as a step along the way to a ful l constitutional pro-
tection of right s, third-wave protagonists regard the Human Rights Act as the
¢nished product, where the respective roles of Parliament and the courts ensure
an ideal protectio n of human rights. For Laws LJ, the Human Right s Act st raddles
the boundary between parliamentaryand constitutional sovereignty.
2
Those pre-
ferring a model of parliamentary sovereignty advocate a more restrictive role for
the courts, whereasthose preferring a model of constitutional sovereignty defend
greater judicial activism in the protection of human rights. The battle¢eld on
which these con£icts are fought surround s the respective roles of se ctions 3 and
4oftheHumanRightsAct.
3
Incorporationists and supporters of constitutio nal
sovereignty advocate a wide use of section 3(1): courts should only issue declara-
tions of incompatibility as a measure of last resort.Third-wave protagonists and
defenders of parliamentary sovereignty advocate a narrow interpretation of sec-
tion 3(1) with a correspondingly greater use of declarations of incompatibility
under section 4.
n
Alison L. Young, Hertford College, Oxford. The author wishes to than k Nick Barber, Alan Bogg,
Aileen Kavanagh and the anonymous reviewer for their very helpful comments on previous drafts.
Responsibility for errors remains that of the author alone.
1 D. Nicol,‘Are Convention Rights a No-Go Zone for Parliament?’ [2002] PL 438,438.
2InternationalTransport RothGmbH vSecretaryof Statefor the Home Department[2003] QB 728, 759^760,
[2002] EWCACiv 158,[71]^[72].
3 Section3(1) requires primarylegislation to be read and given e¡ect, so faras possible, in a manner
compatible with Conventionrights. Where a Convention-compatible interpretation is not possi-
ble, section 4 enables the High Court and above to issue a declaration of incompatibility.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(5)MLR 858^872
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