Human Rights Act 1998 and Power to the Judges - Essay Example

?The Human Rights Act 1998 gives too much power to the judges at the expense of Parliament. Introduction Human Rights Act has changed the balance of power between the Parliament and judiciary many a time. The former has voluntarily given up its power to courts though there has been no clarity as yet on what powers rest with the courts and why the courts appear to seek more powers than have been conferred by the Parliament. This paper examines whether The Human Rights Act 1998 gives power to the judiciary sidelining the Parliament. Historical context The Crown had given up its legislative powers to the Parliament as early as in the seventeenth century and by the nineteenth century the Parliament emerged as the ultimate power in the constitution through its elected representatives. The principle of Parliamentary sovereignty formulated by Dicey 1 states that the English Constitution confers power to the Parliament both to “make or unmake any law” and that no other person or body recognized by the English law has power to “set aside” or “override” “the legislation of Parliament”2 The judges have power to make law known as common law though the Parliament can pass legislation to nullify a particular common law which the judges are expected to follow. In fact according to Dicey, judges as handmaidens of the Parliament are expected to expound, explain and “give effect to the statutes” they come across in their discourse. This principle was confirmed in British Railways Board v Picklin.3 Judges as guardians of common law Notwithstanding this principle, judges as the guardians of common law retain the power of statutory interpretation to ensure that the common law constitutional principles are not eroded by the Parliamentary legislation. It follows therefore that Parliament does not have an unfettered right to make laws foolishly or unreasonably contrary to the common law principles. However, this presumption is so broad that its weight varies with the specific common law right in issue. European Convention on Human Rights reflect some of these principles. In R v Secretary of State for State for the Home Department ex p. Simms 4 , the issue involved challenge of blanket ban on permitting prisoners to meet journalists to protest their innocence. This was held by the House of Lords as a breach of the common law right giving freedom of expression. Although the prison rules permitted such a policy of blanket ban, the House of Lords found it necessary to read down the rules to make the policy unlawful. Lord Hoffman though agreed with the Parliamentary Sovereignty that gives it a right to pass legislation contrary to fundamental principles of human rights and that The Human Rights Act 1998 need not absolve Parliament of this power, it is fraught with political cost. He further states that fundamental rights cannot be denied by means of general or ambiguous words. This might have escaped unnoticed in the democratic process of law making. As such when there is no express provision, courts find it necessary to presume such general words are also subject to the fundamental rights of individuals. Therefore, courts while in agreement with the sovereignty of Parliament, apply these principles universally applicable in different countries where the parliamentary power is limited by the constitution.5 Thus several case laws have recognized some of the fundamental rights. For example, unhindered access to the courts vide R v Lord Chancellor ex-parte Witham 6 and R v Secretary of State for the Home Department ex-parte Saleem7. Secondly, right against punishment through a retrospective legislation as held in Waddington v Miah 8 . Thirdly, right against increase of penalties and right of confidential communication with legal advisor in R v Secretary of State for the Home Department ex-parte Pierson 9 and R v (On the Application of Daly) v SSHD 10 respectively. Lord Hoffman drives home the point that in giving effect to what the Parliament must have intended, the courts rather uphold the supremacy of the Parliament’s sovereignty than undermine it. If the Parliament has given sufficient clarity in its intentions, then the courts have to give effect even if the fundamental rights stand overridden. Question therefore arises if the judges can go beyond in exercise of upholding fundamental constitutional rights contravened by a legislation. In other words whether the courts can strike down a legislation if contravenes the constitutional fundamental rights. Even before the enactment of the Human Rights Act 1998, there were widespread concerns over the Parliament’s insufficient accountability and over what Lord Hailsham called “elective dictatorship” by which Parliament could legislate as it pleases. And also about the risk of parliament majority giving no regard to the minority interests. Some of the solutions to the problems of this nature were introduction of proportional representation, more devolution of powers and the use of referenda besides the role to be played by law. And these are partly responsible for the enactment of Human Rights Act itself. These state of affairs convinced the judges that Parliamentary sovereignty could no longer be sacrosanct. In extra judicial reviews, John Laws, Stephen Sedley, and Lord Woolf have opined that in specific cases, courts were empowered to strike down legislation overriding the fundamental rights.11 Although Lord Birmingham agreed in Jackson v Attorney General 12 with the orthodox view that the Parliament could make or unmake any law, Lord Steyn differed for the reason that the devolution legislation viz European Communities Act and the Human Rights Act ushered in a new legal order. Lord Hope has declared that Parliament’s powers themselves were the creation of common law and he agreed that in appropriate cases, legislations could be stuck down. He has commented that courts can declare any legislative or administrative actions of any organ of government as unauthorised or void if it is in excess of authority conferred to it by law. This view has been strengthened by the European Convention on Human Rights and Human Rights Act 1998 by which individuals are protected from any arbitrary law passed by the government13. The Human Rights Act Section 3 of the Act makes it a duty of the courts to ensure that all Acts passed before or after this Act are compatible with Convention rights as far as possible. Section 2 states that courts should have regard to Convention jurisprudence while interpreting a legislation. Section 4 empowers courts to strike legislations if they are incompatible with Convention right in a given case. This power of striking down can be invoked only if power to interpret under section 3 cannot be exercised. Furthermore, section six of the Act casts a duty on public authorities including the courts to recognize these Convention rights. Section 3 imposed-duty is a new principle in that courts need not examine the intentions of Parliament and instead must see that statutory construction is compatible with Convention rights. Any legislation can only be interpreted in this manner. It can therefore result in a different effect than was intended by the Parliament. This power of adjudication resting with the courts is however opposed to the doctrine of separation of powers.14 However, Courts are not allowed to strike down legislation arbitrarily. Instead the courts must advice Parliament under section 4 to make amendments to the respective legislations or aspects which are not in agreement with Convention rights i.e human rights. Section 10 of the Act facilitates speedy amendments by specific procedures. Parliament can ignore such advices as a matter of its constitutional right. But if a court invokes its power of interpretation under section 3 of the Act, Parliament has to give credence to the court’s interpretation. The Act has been purposefully drafted with the intention of preserving Parliament’s sovereignty. It is not fully correct to hold the view that courts would be regarded as interfering with the sovereignty of Parliament if it strikes down a legislation instead of advising Government to make amendments. The judges’ power to strike down Acts of Parliament is not contrary to the doctrine of sovereignty as expounded by Dicey. It is because the Parliament can still pass any other law as it wished and it is within its right to repeal the Human Rights Act itself 15 In Ghaidan v Godin Mendoza 16 which is a leading case, the House of Lords have stated the scope of sections 3 and 4 of the Act as to when the interpretive power under section 3 and declaratory power under section 4 will be warranted. Courts can only add words to the legislation if it promotes preservation of human rights that is consistent with the object of the Act. This is comparable to the Marleasing doctrine concerning EU law. From the above, it is now clear when the court will resort section 4 or 3. But in view of the fact that since meaning and extent of human rights intended by the Parliament is not clear from the Human Rights Act itself, it is difficult to decide whether judges have too much power at the expense of Parliament. Courts have also not clarified in categorical lines as to the meaning and extent of human rights and instead they have only confused the issue.17 Two different ways of tackling this situation that have been suggested by Lord Justice Elias are “autonomous rights” model or “mirror principle” model. The former posits that a range of domestic rights created by the Parliament inspired by the Convention which the courts can determine as to their validity consistent with the prevailing cultural conditions in the U.K. The language of section 2 of the Act supports this model. Courts just have to see whether they have affinity towards the Convention jurisprudence though they need not follow it. Article 53 of the convention states that nothing in the Convention is derogatory to the human rights that may have been protected under national laws. This shows that judges can even go beyond the convention rights to protect a human right. On the other hand, the mirror principle lays down that courts cannot go beyond the scope of Convention rights18 . Conclusion The above analysis would therefore show that judges cannot be said to have been conferred with too much power at the expense of the Parliament in that Parliament which created the Human Rights Act has given options to the judges either to interpret or make declaration should they find any legislation derogatory to the Convention rights. This shows that the legislature’s intention is to ensure that human rights are protected by default. Notwithstanding this, Parliament can ensure its supremacy by repealing the Human Rights Act itself or pass any future legislation to nullify any ruling of the Court within the framework of common law principles. Bibliography Cases British Railways Board v Picklin [1974] AC 765 per Lord Reid in Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 2 Ghaidan v Godin Mendoza [2004] 2 AC 557 in Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) Jackson v Attorney General [2006] 1 AC 262 in Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 4 R v Secretary of State for the Home Department ex-parte Pierson [1998] AC 539 (HL) In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) R v (On the Application of Daly) v SSHD [2001] 2 AC 532 in Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) R v Secretary of State for State for the Home Department ex p. Simms [2002] 2 AC 115 In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 2 R v Lord Chancellor ex-parte Witham [1998] QB 575 In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 3 R v Secretary of State for the Home Department ex-parte Saleem [2001] 1 WLR 443 CA In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 3 Waddington v Miah [1974] 1 WLR 683 In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) Books Dicey A B, The Law of the Constitution (1885) pp 39-40 In Lord Justice Elias, The rise of the Strasbourgeoisie and the ECHR (2009) p 1 Working Papers Elias, Lord Justice The rise of the Strasbourgeoisie and the ECHR (2009) p 1 Read More