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Section 19 of the Human Rights Act 1998 Importance, Impact and Reform

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Section 19 of the Human Rights Act 1998 Importance, Impact and Reform This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Section 19 of the Human Rights Act 1998 importance, impact and reform Weston, Elin Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT Unless another licence is stated on the immediately following page this work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 27. Sep. 2021 This electronic theses or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ Title: Section 19 of the Human Rights Act 1998: importance, impact and reform Author: Elin Weston The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENSE AGREEMENT This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License. http://creativecommons.org/licenses/by-nc-nd/3.0/ You are free to: Share: to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). Non Commercial: You may not use this work for commercial purposes. No Derivative Works - You may not alter, transform, or build upon this work. Any of these conditions can be waived if you receive permission from the author. Your fair dealings and other rights are in no way affected by the above. Take down policy If you believe that this document breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. SECTION 19 OF THE HUMAN RIGHTS ACT 1998: IMPORTANCE, IMPACT AND REFORM ELIN ELIZABETH WESTON PHD 2013 1 ABSTRACT Section 19 of the HRA 1998 (HRA) requires a Minister to make a statement to Parliament, before the second reading of a bill for which he is responsible, on the proposed legislation’s compatibility with Convention rights. This procedural mechanism is of central importance to the scheme of the Act, aiming to better protect Convention rights while preserving parliamentary sovereignty (Chapter 1). The section 19 procedure accords with similar developments in a number of other Commonwealth jurisdictions which emphasise the importance of human rights standards being taken into account in the legislative process (Chapter 2). However, despite its domestic and international significance, the importance of section 19 within the scheme of the HRA was overshadowed during the Act’s parliamentary passage and in academic studies of its operation (Chapter 3). Section 19 has resulted in the development of many positive practices relating to the preparation of legislation by central government (Chapter 4) and the scrutiny of legislation by Parliament (Chapter 5), notably the production of detailed guidance for the Executive and the work of the Joint Committee on Human Rights. However, a number of obstacles remain, such that section 19 has had a more limited impact than originally intended. Many of these limiting factors are illustrated in a case-study examination of the passage of section 19 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Chapter 6). This thesis proposes reforms to the section 19 system designed to alleviate a number of the problems identified, including transferring the obligation to make statements of compatibility to the Attorney-General and providing education and training on human rights issues to parliamentarians (Chapter 7). These and other measures discussed in this thesis would help ensure that the democratically accountable branches of government fully contributed to the protection of human rights in the United Kingdom. 2 BRIEF CONTENTS ABSTRACT 2 LIST OF TABLES 9 LIST OF CASES 10 LIST OF STATUTES 12 LIST OF SECONDARY LEGISLATION 15 ABBREVIATIONS 16 CHAPTER 1 – SECTION 19 OF THE HUMAN RIGHTS ACT 1998: ITS IMPORTANCE FOR THE PROTECTION OF HUMAN RIGHTS IN THE UNITED KINGDOM 17 CHAPTER 2 – SECTION 19 OF THE HUMAN RIGHTS ACT IN THE INTERNATIONAL CONTEXT: THE COMMONWEALTH FAMILY OF NEW MODELS OF RIGHTS PROTECTION 42 CHAPTER 3 – THE IMPORTANCE OF SECTION 19 OF THE HUMAN RIGHTS ACT 1998: ACKNOWLEDGED BUT OVERSHADOWED 86 CHAPTER 4 - THE INFLUENCE OF SECTION 19 IN THE PREPARATION OF LEGISLATION BY CENTRAL GOVERNMENT 120 CHAPTER 5 - THE INFLUENCE OF SECTION 19 ON PARLIAMENT AND THE PARLIAMENTARY SCRUTINY OF LEGISLATION 157 CHAPTER 6 - SHAM MARRIAGES AND SHAMBOLIC LEGISLATING: THE ASYLUM AND IMMIGRATION (TREATMENT OF CLAIMANTS, ETC) ACT 2004, A CASE STUDY 200 CHAPTER 7 – CONCLUSIONS AND RECOMMENDATIONS FOR REFORM OF SECTION 19 OF THE HUMAN RIGHTS ACT 1998 231 BIBLIOGRAPHY 262 3 CONTENTS ABSTRACT 2 LIST OF TABLES 9 LIST OF CASES 10 LIST OF STATUTES 12 LIST OF SECONDARY LEGISLATION 15 ABBREVIATIONS 16 CHAPTER 1 – SECTION 19 HUMAN RIGHTS ACT 1998: ITS IMPORTANCE FOR THE PROTECTION OF HUMAN RIGHTS IN THE UNITED KINGDOM 17 1. Section 19 Within the Scheme of the Human Rights Act 1998: of Central Importance 18 The section 19 statement of compatibility: nature and scope 19 The section 19 statement of compatibility: purpose and potential impact 20 2. Section 19 within the Constitutional Arrangements of the United Kingdom: Facilitating the Protection of Human Rights and the Preservation of Parliamentary Sovereignty 22 The constitution and the protection of human rights 22 United Kingdom commitment to international human rights instruments 22 The protection of civil liberties and human rights under domestic law 25 The modern constitution: increasingly legal nature, continued insistence on parliamentary sovereignty 29 The increasingly legal nature of the modern constitution 29 The continued insistence on parliamentary sovereignty 32 3. The Paradox: An Atmosphere Hostile to the Human Rights Act 1998 34 Academic and political hostility to the Human Rights Act 1998 34 The Human Rights Act 1998 has not prevented the passage of legislation raising serious human rights issues 36 4. Conclusions: Section 19 is of Central Importance and Significant Potential 40 CHAPTER 2 – SECTION 19 OF THE HUMAN RIGHTS ACT IN THE INTERNATIONAL CONTEXT: THE COMMONWEALTH FAMILY OF NEW MODELS OF RIGHTS PROTECTION 42 1. The ‘New Models’ of Rights Protection: Theories and Features 43 4 Gardbaum and the ‘new Commonwealth model of constitutionalism’ 43 Hiebert and the ‘parliamentary model’ 45 2. Canada & New Zealand: The Ancestors of Section 19 of the Human Rights Act 1998 46 The Canadian Charter of Rights and Freedoms 1982: too few reports? 46 The Canadian Bill of Rights Act 1960 46 The Canadian Charter of Rights and Freedoms 1982 48 The impact of the Charter and the reporting requirement 50 The New Zealand Bill of Rights Act 1990: too many reports? 54 Section 7 of the New Zealand Bill of Rights Act 1990 54 The impact of the reporting requirement in section 7 of the NZBORA 56 Conclusions on the experience of ministerial certification in Canada and New Zealand: executive vetting and parliamentary impassivity 60 3. Australian Capital Territory & Victoria: The Descendants of Section 19 of the Human Rights Act 1998 61 Australian Capital Territory – Human Rights Act 2004 62 Pre-enactment scrutiny under the Human Rights Act 2004 (ACT) 62 The impact of sections 37 & 38 of the Human Rights Act 2004 (ACT) 64 Victoria – Charter of Human Rights and Responsibilities Act 2006 69 Pre-enactment scrutiny under the Victorian Charter 69 The impact of sections 28 & 30 of the Victorian Charter 71 Conclusions on experiences in the Australian Capital Territory and Victoria: early success, uncertain futures 77 4. Australia: the Distant Cousin 78 The background: a written constitution without a Bill of Rights 78 Recent developments: ‘No’ to a bill of rights, ‘Yes’ to pre-enactment scrutiny 81 The National Human Rights Consultation 81 The Federal Government’s Response – Australia’s Human Rights Framework and the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) 82 Conclusions – a new form of the ‘new model’ of rights protection 83 5. Conclusions: Section 19 of the Human Rights Act 1998: At the Heart of the Commonwealth ‘Family’ of Rights Protecting Measures 84 CHAPTER 3 – THE IMPORTANCE OF SECTION 19 OF THE HUMAN RIGHTS ACT 1998: ACKNOWLEDGED BUT OVERSHADOWED 86 1. Statements of Compatibility in Documents Preceding the Human Rights Act 1998: An Evolving Concept 86 Report of the Joint Consultative Committee on Constitutional Reform
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