If the Human Rights Act is repealed, will traditional judicial review be able to fill the vacuum and protect individual rights effectively?
The Human Rights Act (HRA) of 1998 is a significant piece of legislation in the United Kingdom that incorporates the European Convention on Human Rights (ECHR) into domestic law. The Act allows UK courts to hear cases involving alleged breaches of the rights protected by the ECHR and has played a critical role in safeguarding individual rights. If the HRA were to be repealed, the question arises whether traditional judicial review mechanisms would be sufficient to protect individual rights effectively.
Traditional judicial review is a process by which courts assess the legality of decisions made by public authorities. It evaluates whether a public body has acted within its legal powers, adhered to proper procedures, and made rational decisions. However, judicial review is not primarily concerned with protecting individual rights; its focus is on ensuring that public bodies exercise their powers lawfully.
- Limited Scope of Traditional Judicial Review:
Traditional judicial review focuses on procedural fairness, legality, and rationality, which may not be sufficient to address substantive human rights violations (Craig, P., 2015). In other words, judicial review can only intervene if there has been a procedural error, the decision is irrational or disproportionate, or if the decision-maker has acted outside of their powers (ultra vires).
- Absence of Human Rights Framework:
The HRA has introduced a comprehensive human rights framework that emphasises the importance of proportionality and balancing of rights. If the HRA were repealed, this framework would be lost, and courts would have to rely on common law principles and other legislation, which may not offer the same level of protection.
- Limited Remedies in Judicial Review:
In traditional judicial review, the remedies available to individuals are limited compared to those provided by the HRA. For instance, if a public body has violated an individual’s rights, the court may issue a quashing order, prohibiting order, or a mandatory order. However, these remedies might not always be appropriate or sufficient to address human rights violations. Under the HRA, courts can issue a declaration of incompatibility, which highlights a conflict between domestic law and the ECHR, prompting the government to consider legislative changes (Hoffman, D., & Rowe, J., 2018).
- Reliance on Common Law Rights:
In the absence of the HRA, UK courts would have to rely on common law rights, which are judge-made and can evolve over time. However, these rights are not as extensive or well-defined as the rights protected under the ECHR. Moreover, common law rights can be subject to change, making them less predictable and stable compared to the rights enshrined in the HRA (Bingham, T., 2010).
- Lack of International Obligations:
The ECHR, as an international treaty, creates obligations for the UK to protect and respect human rights. If the HRA were repealed, the UK would still be bound by the ECHR as a member of the Council of Europe. However, without the HRA, individuals would have to seek redress for human rights violations directly from the European Court of Human Rights (ECtHR) in Strasbourg, which can be a lengthy and cumbersome process. Additionally, the influence of the ECHR on domestic jurisprudence would be reduced, potentially leading to weaker human rights protections within the UK legal system (Klug, F., & Wildbore, H., 2010).
In conclusion, traditional judicial review mechanisms may not be adequate to fill the vacuum left by the repeal of the Human Rights Act. The limited scope, absence of a human rights framework, limited remedies, reliance on common law rights, and lack of international obligations make it difficult for traditional judicial review to protect individual rights as effectively as the HRA. The HRA provides a comprehensive human rights framework that enables UK courts to address substantive human rights violations, hold public authorities accountable, and provide appropriate remedies. While traditional judicial review does serve an essential function in maintaining the rule of law, it is not primarily designed to protect individual rights and may not offer the same level of protection as the HRA.
