The Extent to Which the Human Rights Act of 1998 Strengthened the Rule of Law in the U.K. Constitution
The Human Rights Act 1998 (HRA), an Act introduced to give effect to
rights from the European Convention on Human Rights (ECHR) in domestic
legislation. Its introduction has affected many legal areas;
especially the conceptions of the rule of law and their place in the
UK constitution. To understand the effect of the HRA, it is first
necessary to establish the initial status of these two concepts.
Having established this, the extent of the impact of the HRA can be
examined.
Rule of law and HRA
The concept of the rule of law has traditionally attracted two
different interpretations.[1] In terms of the impact of the HRA, each
interpretation, namely formal and substantive, invoke different
outcomes concerning their consequent effect upon the UK constitution.
The formal approach adopted most prominently by Dicey, holds the
fundamental tenet, ‘those who make and enforce the law are themselves
bound to adhere to it’.[2] It is less concerned with the actual
content or ‘justness’ of the laws themselves, but more in ensuring
that there is equal subjection of all citizens under the given system.
This positivist ideology separates the question of what law is, and
what it ought to be.[3] Raz went onto add that laws created under the
standard of the formal interpretation should be capable of acting as a
guide to an individual’s conduct. They should be prospective, guided
by clear rules, with open access to the courts (containing an
independent judiciary) and relatively stable.[4] This is not an
exhaustive list of what the formal interpr...
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[19] See n. 18
[20] Human Rights Act 1998 - Order 2001 (SI 2001/3644)
[21] HRA 1998 - §4(6)
[22] See n. 18
[23] [2002] Q.B. 929
[24] K. D. Ewing – Human Rights Act and Parliamentary Democracy [1999]
62 MLR 79. Also see Donoghue v Poplar Housing and Regeneration
Community Association Ltd [2002] Q.B. 48
[25] See n.1
[26] HRA – How it works -
(accessed 07/01/05)
[27] See n. 7 p626 n. 3
[28] [2001] 2 W.L.R 1546
[29] Speech by Lord Woolf at opening of European Court of Human
Rights, Strasbourg, 23/01/03 – available at
(accessed
05/01/05)
[30] [2001] 2 WLR 1622
[31] See n. 29