24 Chapter 1The legal system
United Kingdom did not have true parliamentary sovereignty. Second, the UK Parliament
could vote to repeal the European Communities Act 1972 and leave the EU. It must be said,
however, that this option becomes increasingly unlikely and would become virtually
impossible if full monetary union were ever achieved.The Human Rights Act 1998
First, it should be noted that the European Convention on Human Rights is not a creation
of the EU. The Convention was drawn up in 1950, before the EU was created. The United
Kingdom ratified the Convention in 1951. Before the Human Rights Act 1998 (HRA 1998)
came into effect, in October 2000, the Convention could not be directly enforced in the UK
courts. It could be enforced only by taking a case to the European Court of Human Rights
in Strasbourg.
Section 2 of the Human Rights Act 1998 now requires any court or tribunal which is
considering a question which has arisen in connection with a Convention right to take into
account any decision of the European Court of Human Rights. This court sits in Strasbourg
and is quite separate from the European Court of Justice, which sits in Luxembourg. Section
2 of the Act preserves parliamentary sovereignty because the UK courts merely have to take
into account decisions of the European Court of Human Rights. The UK courts are not
absolutely bound by these decisions. This point was emphasised by Lord Phillips, the
President of the Supreme Court, in RvHorncastle (2009). He said that when senior UK
judges had concerns about whether a decision of a Strasbourg Court sufficiently appreciated
or accommodated particular aspects of the UK process, a UK court could decline to follow
the decision of the Strasbourg Court, giving reasons for this course of action. Lord Phillips
thought that, if this happened, the Strasbourg Court would then be given the opportunity
to reconsider the aspect of its decision which had caused the problem.
Section 3 HRA 1998 requires that all legislation is read and given effect in a way which
is compatible with the Convention rights, but only in so far as it is possible to do this. Any
precedent-making court has the power in any legal proceedings to make a declaration of
incompatibility, stating that any legislation is incompatible with Convention rights. However,
such a declaration would not invalidate the legislation in question. It would give the rele-
vant minister the option to revoke or amend the legislation. The minister could, however,
leave the incompatible legislation in place. If the European Court of Human Rights delivers
an adverse ruling the relevant minister has the same powers to revoke, amend or leave in
place the incompatible legislation. Any court can declare delegated legislation, but not
statutes, invalid on the grounds of incompatibility. However, this is not the case if the
Parent Act, which authorised the legislation in question, provides that the legislation should
prevail even if it is incompatible. Whenever a new Bill is introduced into Parliament, s. 19
HRA 1998 says that the relevant minister must make a statement to Parliament, before the
second reading, declaring that the legislation either is compatible or is not. If the minister
states that the legislation is incompatible, he or she must state that the Government intends
to proceed with it anyway. The minister does not need to state the way in which the
legislation is incompatible.
Section 6(1) HRA 1998 provides that it is unlawful for a public authority to act in a
way which is inconsistent with a Convention right, unless the public authority could not
have acted differently as a result of a UK Act of Parliament. This section will have a major
effect on many UK businesses, as a public authority is defined as including persons whose
functions are functions of a public nature. It follows that businesses such as private schools,