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The Approach of the Law Lords - Essay Example

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‘The approach of the Law Lords to statutory interpretation has been radically changed by the Human Rights Act. Judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.’ The Human Rights Act came into force in October 2000 and implements in the law of the United Kingdom the principles enshrined in the European Convention on Human Rights…
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Download file to see previous pages When it is impossible to interpret the legislation in a manner that complies with the ECHR, the domestic court must come up with a “Declaration of Incompatibility”. The point of departure into the enquiry as to whether the Law Lords are now made to legislate human rights is the provision in the Human Rights Act 1998, Section 3 of which reads as follows: “So far as possible to do so, primary legislation and secondary legislation should be read and given effect in a way which is compatible with Convention rights.” By Convention Rights, one refers to the European Convention on Human Rights, to which the United Kingdom is bound. The crux of the debate is this: does this provision now radically alter the power of Judges, such that they may now effectively ‘legislate’ human rights through interpretation of acts of Parliament? If so, is this change for better or for worse? Observers have noted that “stocktaking rather than definitive appraisal” (Bonner, et. al., 2003: 549) may be more prudent, given the evolving picture. This paper first looks at the background of Section 3 and how this Section has been developed and crystallised in jurisprudence. After which, this paper shall also argue that this is in consistent with the international obligations of the United Kingdom. Finally, it shall make the argument that the effects of Section 3 is more beneficial than detrimental, in that it establishes with greater certainty the separation between the legislature and the judiciary – a move that complements the recent creation of the Supreme Court as an appellate tribunal over the Law Lords. The main critique, to err on the side of oversimplicity, of those who argue that the Section 3 of the Human Rights Act 1998 is too radical an alteration of the power of judges is that human rights policy in the country will be in the hands of a group of people who were not elected through democratic elections. On the other hand, those who argue for the Human Rights Act, and consequently, the European Convention on Human Rights, state that the imperatives of human rights and justice demand that Parliamentary acts be constantly checked and balanced. Indeed, the requirements of modern governance make it necessary that the branches of government are not given unfettered power and discretion. It goes without saying, for instance, that considerations of peace and order must be weighed against the sacrosanct principles of civil liberties and personal freedoms. Statutory construction Jurisprudence has spoken richly on how to proceed with interpreting legislation in harmony with Article 3. First, it is important to identify the specific statutory provision that is in contravention with the rights under the Human Rights Act (see the case of R v A (No. 2) [2002] 1 AC 45 ). After which, the Court must determine whether or not there is a breach of Convention rights (see the case of Poplar Housing Association v Donaghue [2002] QB 48 para 5). The court is then charged with the duty of identifying possible meanings means within the legislation. Jepson states that there are two principal ways by which the ...Download file to see next pagesRead More
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