Threat Of Human Rights Act To EU Supremacy

What is the threat posed by the Human Rights Act to EU supremacy?

By the European Communities Act 1972 the UK was agreeing to be bound by the Treaty of Accession of the same year. This meant that the UK was in effect handing over some of its power to the EC and that directly effective EC law prevailed over national law as demonstrated in the case of Factortame1 . This EC supremacy over UK law was not complete as UK law still prevailed over indirectly effective EC law if consistent interpretation was not possible.

The Human Rights Act 1998 made the European Convention on Human Rights (ECHR) part of the UK national law. Prior to this the courts could only take the ECHR into account in domestic proceedings in very limited circumstances. However, the Act provides only a weak incorporation of the Convention into UK law. Section 19 of the Act tells us that all future legislation must contain a declaration of compatibility with the ECHR, thereby showing that the legislation is not intended to contravene the Convention, and giving effect to EC law. Section 3 of the Act says that so far as it is possible all primary and subordinate legislation should be read and given effect in a way which is compatible with the ECHR. This applies to both future and past legislation. However, if it is not possible to interpret legislation in line with the Convention then the UK law prevails. This goes against the Doctrine of EC Supremacy. However, to date very few Acts have been declared incompatible with the ECHR, and many senior judges have said that all Acts of Parliament should be able to be interpreted in such a way as to give effect to the Convention, so in practice there will rarely be a problem.

By section 6 of the Act it is unlawful for a public authority to act in a manner contrary to the Convention. It is uncertain whether or not the courts are a public authority for the purposes of this. If they were found to be so and they upheld an Act which was incompatible then the individual prejudiced would be able to seek a remedy against them. However to date, no such claim has been brought against the courts and so this theory has not been tested out in a practice. Despite this it will probably have the result that the courts will be extremely reluctant to find Act incompatible with the ECHR as then they themselves may be found to have acted unlawfully in breaching the Convention.

Another possible problem with the HRA with regards to EC supremacy is that of entrenchment of the Act into UK law. Due to our national doctrine of Parliamentary Sovereignty which states that the UK Parliament may pass or repeal any law it wishes even if this overrides international law2 parliament could at any time repeal the HRA thereby taking away the rights which it affords people by virtue of the ECHR. Parliament is also unable to bind its successors 3, so there is no way to ensure that a future parliament does not repeal the Act.

  1. R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769.
    Other cases which show EC Supremecy are:
    Van Gend de Loos v Nederlande Administratie der Belastingen [1963] ECR 1
    Costa v ENEL [1964] ECR 585
    Amministrazione delle Finanze dello Stato v Simmenthale SpA [1978] ECR 629[^ Return]
  2. Cheney v Conn [1958] 1 WLR 242[^ Return]
  3. Ellen Street Estates Ltd v Minister of Health [1934] AC 526[^ Return]

BIBLIOGRAPHY

Cases
Amministrazione delle Finanze dello Stato v Simmenthale SpA [1978] ECR 629
Cheney v Conn [1958] 1 WLR 242
Costa v ENEL [1964] ECR 585
Ellen Street Estates Ltd v Minister of Health [1934] AC 526
Pickin v BRB [1974] AC 765
R v Secretary of State for Transport ex p FactortameLtd. [1989] 2 WLR 997 No2 [1990] 3 WLR 818 and No3 3 All ER 769
Van Gend de Loos v Nederlande Administratie der Belastingen [1963] ECR 1

Legislation
European Communities Act 1972
European Convention on Human Rights
Human Rights Act 1998
Treaty of Accession

Books
Barnett: Constitutional and Administrative Law
Steiner & Woods: Textbook on EC law
Tillotson: EC Law Cases and Materials
Thompson: Textbook on Constitutional and Administrative Law

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