Dalhousie Law Journal


Human Rights Act, European Convention on Human Rights, courts, legislation, parliament, jurisprudence, United Kingdom, common law


This article reviews the institutional and substantive impact that the Human Rights Act has on English law through its incorporation of the European Convention on Human Rights. Under the Act, higher courts can now move beyond a formalistic method of judicial review and substantively evaluate legislation in light of the Convention. The judiciary can accordingly issue declarations that statutes are incompatible with the Convention which, although not invalidating the act in question, will bring considerable political pressure to bear on Parliament to ensure compliance. The Act further directs courts to give special regard to the decisions of the European Court of Human Rights when considering cases involving Convention rights. This new source of jurisprudence, along with the Convention, brings a positive conception of rights into English law that conflicts with the negative conception foundin the common lawandtheAct's attempts topreservepariamentary sovereignty. Where authority from the European Court is lacking, English courts in the future will have to anticipate its response by engaging in a teleological approach to rights interpretation that is based on broad principles rather than textual formalism. Nevertheless, the common law should successfully accommodate these developments into its own framework.