Public Law, the Parliament in the United Kingdom - Essay Example

The declaration does not bind the parties nor can it lead to the invalidation of legislation (Clements, 2008: p21). Therefore, section 4 attains its aims via political and not legal means through section 10 which allows the government to undertake amendment of legislation sans full approval of the legislature. In this case, a remedial order can be made only following a declaration of compatibility or similar European court findings with every appeal being completed or renounced expressly. Section 4 will allow a declaration of incompatibility by the court if, by chance, it is satisfied that its provisions do not match well with the convention of the rights (Clements, 2008: p21). Section 3 makes a requirement that courts should interpret the legislation as being compatible with the convention of rights when and where possible.

While the declaration of incompatibility is a last resort measure, there are cases where the court’s interpretation may assume administrative powers that, ordinarily, it would not possess with consequences that the court is not best placed to make a consideration (Barnett, 2009: p61). This meaning departs significantly from an Act of Parliament’s fundamental feature that it is likely to have broken the boundary between amendment and interpretation. The statute’s thrust is essential, especially since going against this thrust needs legislative power that courts of law do not possess. In the case of A v. Ministry of Justice, a declaration of incompatibility following the 4th Section is the appropriate remedy.

The power of a judge to issue a declaration of incompatibility can allow a judge to avoid becoming involved in issues of sensitive public interest (Mwalimu, 2010: p13). Declarations of incompatibility are optional and, in this case, the court needs to choose whether to use it or not according to their discretion. The judge can use the declaration of incompatibility if a point has been identified, as well as fully argued, at a hearing that was appointed for the purpose. The judge can also choose not to use the declaration of incompatibility unless it becomes appropriate for the incompatibility to be formally recorded via a declaration.

Finally, the judges can also issue a declaration that serves a legislative purpose. It should also provide for a basis, for a crown minister, to consider whether compelling reasons exist to amend the legislation (Mwalimu, 2010: p14). In the case of A v. Justice Ministry, the judge may also find it unnecessary to give a declaration of incompatibility since the Secretary of State had already accepted the domestic law as being incompatible with the convention of rights. In this case, making another declaration of incompatibility would exert unnecessary pressure to amend legislation in the parliament.
The power to make a declaration of incompatibility about human rights is only likely to be available to judges of the High Court. Judges must ensure that any declaration does not make any difference to the case at hand as the High Court will still have to use the legislation (Elliott & Thomas, 2011: p72).

The declaration of incompatibility must also not make difference to any cases, which will occur in the future since the legislation will have to remain valid. Finally, the judge needs to ensure that the declaration of incompatibility does not compel parliament to alter legislation in any manner. However, the judge using restraint should not be seen as the fear that the parliament may cave into a declaration of incompatibility by the High Court and change legislation. Parliament will be unlikely to respond to interpretations by the judiciary, which it may believe to be untenable or politically unpopular such as to jeopardize the government that is in power (Elliott & Thomas, 2011: p72).

The parliament in the United Kingdom has always heeded all judicial declarations since the passing of the United Kingdom Human Rights Act in 1998. However, while it is not bound to any declaration of incompatibility, any failure to do so would be cause for a case to the European Court of Human Rights (Elliott & Thomas, 2011: p73). This is especially so because the United Kingdom is bound, legally, to follow similar decisions by this court. Judges should ensure that they use the declaration of incompatibility to check any overt involvement in sensitive public interest issues. This is because they should be careful not to push the parliament into a corner to be compliant with their rulings. In addition, most laws only need minor tweaking intending to make them compliant with the Human Rights Act. By using, a declaration of incompatibility, the judges, may serve the purpose of showing minor deficiencies that the legislature can address happily. Read More