The Extent to Which the Human Rights Act of 1998 Strengthened the Rule of Law in the U.K. Constitution

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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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...rror detainees win Lords appeal - <

http://news.bbc.co.uk/1/hi/uk/4100481.stm> (accessed 02/01/05)

[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

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