In our role as quasi-parliamentary draftsmen for some of our overseas clients, we are all too aware of how the “law of unintended consequences” can alter the effect of a legal provision.
As a topical example in this week of their party conference, we note that the Conservative Party is considering introducing a Bill of Rights to replace the Human Rights Act 1998 (“HRA”). However, within the HRA is a mechanism to permit a court to declare that any provision of a primary statute is incompatible with the HRA (under s.4). However, a provision subject to a declaration continues to have full force and effect.
Did the draftsmen of the mechanism foresee the possibility that an attempt to repeal the HRA would itself be a provision incompatibile with the HRA, particularly if the provision was within a Bill of Rights that arguably restricted or limited the rights a citizen enjoys under the European Convention of Human Rights incorporated into UK law by the HRA?
It is a difficult question, which may end up having to be answered by the new Supreme Court, in what would almost certainly be their first confrontation with Parliament since its creation and the true separation of powers in the UK between the fused executive and legislature on one hand and an independent judiciary on the other.