Purpose and Effects of Section 4 of Human Rights Act - Assignment Example

 Public Law Questions Q1 Explain the purpose and effects of Section 4 HRA. Does this section conflict with the traditional constitutional principle of parliamentary sovereignty? Section 4 of the Human Rights Act 1998 outlines the declaration-of-incompatibility provision. S 4 grants certain courts the right to determine whether primary or subordinate laws are compatible to convention rights or not and to subsequently declare them incompatible if so found. In the case pf primary laws, the right simply accrues upon a finding of incompatibility but in the case of secondary laws, there must be a determination of incompatibility in addition to the requirement that the primary legislation relevant to it prevents its removal. Instances when the courts used this prerogative is in the cases of International Transport Roth GMBH and other v Secretary of State for the Home Department 1 and the R (H) v Mental Health Review Tribunal N&E London Region. 2 In Roth, a group of lorry drivers and haulage companies challenged Part II of the Immigration and Asylum Act for being incompatible with convention rights. The said legislation was passed to answer the flagrant clandestine illegal entry by penalising, among others, the owner, driver, operator and hirer with a fine of £2000. The lower court declared the said provisions of law incompatible with Art 6 of the HRA because it penalises, in effect, a criminal act despite its claim to the contrary and therefore violates Art 6 because the determination of guilt, among others, is singly left to the Secretary of State and Art 1 because of the penalty of vehicle detention involved infringement on property rights. On the other hand, in the R(H) case, the court made a determination of incompatibility against s 73 of the Mental Health Act of 1983 on the ground that it violates Art 5 on the Right to Life and Liberty by placing the burden of proof on the applicant rather than the hospital in showing basis for detention of patient in a mental hospital. 3 As stated, only certain courts enumerated by s 4 can exercise this prerogative. However, the preceding section of the HRA which requires that both primary and secondary legislations “must be read and given effect in a way which is compatible with Convention rights” does not distinguish which courts are obliged or not. The implication is that although not all courts are given the prerogative to declare incompatibility with convention rights, all courts must nevertheless take into consideration the issue of compatibility but apply the national law just the same. The remedy in such cases is an appeal to a higher court with the power to declare such incompatibility. 4 Section 4 itself declares that the power to determine and declare incompatibility is only persuasive and not obligatory. The implication is that s 4 does not infringe upon parliamentary sovereignty. What the government can do is any of the three things: do nothing; change the law or administrative practice, or; declare remedial orders. Q2 How can the supremacy of EU law be reconciled with the UK constitutional principle of parliamentary sovereignty? In the case of Costa v ENEL, 5 the ECJ declared, to the effect, that EU law has precedence over domestic law. In this case, the appellant questioned the propriety of involving the ECJ in a case where the issue at stake in the lower court does not involve the application of any treaty law but only domestic law. The ECJ contended that notwithstanding that such is the case, the ECJ can nonetheless acquire jurisdiction over it so long as it involves the interpretation of any EU law. The supremacy of the EU law, according to the court, stems from the fact that UK, as with other members of the EU had voluntarily surrendered this sovereignty when they banded together to form a common community and agreed to grant it and its agencies with powers. In this respect, any domestic legislation which overrides any treaty law, explicitly or implicitly, deprives the latter of its character as Community law. 6 The case of Amministrazione delle Finanze Stato v Simmenthal SpA 7 is even blunter in expounding the idea of EU laws’ supremacy over domestic law. In that case, there was conflict between Treaty law and a subsequent national law which arose when the Italian legislature passed a law which charged fees for inspection of beef upon crossing the Italian frontier thereby preventing, according to the complainants, the free passage of goods in breach of Community law. The ECJ held that every national court must, in the event of a conflict between Community and national laws, previous or subsequent, must be resolved in favor of the former and render the latter inapplicable. 8 Rulings like Costa and the Simmenthal would, on the surface, contradict the principle of Parliamentary sovereignty which is defined by Dicey as the right of the Parliament “under the English Constitution […] to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of the Parliament.” 9 The issue on the principle of Parliamentary sovereignty in the light of the supremacy law was put on center stage in the case of Factortame v Secretary of State for Transport 10 in which a controversial law, the Merchant Shipping Act 1988, was assailed by a fishing corporation registered in UK but owned by Spanish nationals as in breach of Community law on prohibition in discrimination on the basis of nationality. The case was referred to the ECJ for preliminary ruling by both the Divisional Court which tried the case and subsequently by the House of Lords where it was brought on appeal. After a favorable decision by the ECJ for the Spanish nationals, the House of Lords followed suit. Justifying its decision against criticisms on the issue of Parliamentary Sovereignty, the Court rationalised that whatever surrender of sovereignty the Parliament had given up, it was not foisted upon them by external forces but was made voluntarily when it joined the EU and subsequently enacted the European Communities Act in 1972. In other words, the supremacy of the EC law in the UK does not stem from ECJ decisions or from the Treaty signed by UK but from a law which the UK Parliament had enacted itself. 11 Q3 Explain and critically examine the role of “constitutional conventions” in the distribution and regulation of power in the British Constitution. Constitutional conventions are the more informal ways in which politics are being practiced which have been implicitly sanctioned and accepted through the passage of time that they became expected ways of doing things. They are the informal rules which bridge the gap between constitutional formal theory and the practical realities of politics and have been described as “the general agreements among public men about ‘the rules of the game’ to be borne in mind in the conduct of political affairs.” They exhibit the following characteristics: binding although non-legal in the sense that they have no legal basis which is enforceable in courts; created or changed not through legislation or common law; their enforcement is through political rather than legal sanctions, and; not put into writing. 12 In the UK, in which there is no written constitutional law, “constitutional conventions” became the norm rather than the exceptions. They are therefore, central to British politics. In the distribution of powers in the government, constitutional conventions govern and prevail. A sovereign, for example, is expected to wield vast powers in the legislative and administrative arena, which implies that he/she could exercise the prerogative to dissolve the Parliament, appoint the highest of the government officials and even refuse to grant assent to Parliamentary bills. The established convention in the British political system does not however, follow such practice because only elected ministers actually hold the government reins. 13 Among the constitutional conventions in the distribution of powers in the UK are: the centrality of the Prime Minister and the Cabinet in the political system; the accountability of government ministers to the Parliament, and; the limitation of the power of the majority party on the minorities with respect to oppressive acts. 14 The primary weakness of a constitutional convention is its inability to be legally enforceable owing to the fact that it has no legal origin. Although the sovereign, by convention, is not expected to exercise the vast powers that inherently belong to him/her, technically there is no legal basis that would hinder him/her from exercising such powers. This is likewise true also when it comes to the separation of powers which is governed only by constitutional conventions, making the happening of an “elected dictatorship” not a very remote possibility. Q4 To what extent are conventions on ministerial responsibility adequate for making central government accountable? Identify and assess the mechanisms available for effecting ministerial responsibility/accountability? UK ministers, by conventions, owe the twin responsibilities of personal as well as collective accountability to the Parliament. Although these responsibilities are largely governed by conventions and hence, not really legally enforceable, there have been mechanisms however put in place catalysed by previous controversies in ministerial behavior and responsibilities. The “cash for questions” affairs in the 1990s where two MPs colluded to obliterate a particular parliamentary question in exchange for cash and the discovery of the financial connection between Neil Hamilton and the owner of Harrods gave life to a subsequent Committee on Standards in Public Life responsible for issuing reports on everything about the MPs. The Committee’s reports led to the formulation of new mechanisms that would enforce MP responsibilities: the banning of paid advocacies; the creation of the Parliamentary Commissioner for Standards office tasked with the keeping of MP interests Registers, MP counseling and MP investigation; a Code of Conduct for MPs first developed in 1996 and renewed in 2002. 15 Q5 Discuss the proposition that there are no reason why the judiciary could not expand judicial control over conventions just as they have over the prerogative. Do you agree? No. Constitutional conventions per se are not of legal orientation and therefore are not legally enforceable whilst the judiciary’s functions are confined to the interpretation of legal rules and bereft of the power to check on the constitutionality of the acts of the other political branches. Assuming that these conventions are not in conflict with UK legislations and administrative laws, the judiciary therefore is not possessed with the power to pass judgment upon these conventions because of the lack of legal basis. If an MP, for example, who is by convention is accountable to Parliament might breach this convention by lying to the body but he cannot be forced, through judicial means, to resign his post because there is no legal basis for such an action. Courts can only take control through its decisions and if an issue cannot be brought in court for trial because grounds for it do not exist, then the court has no basis asserting its opinions to the public. Q6 Critically examine the arguments for and against the contention that the UK does not have a constitutional law at all? Does the form of the UK’s constitution limit its effectiveness? There are several authorities who claimed that the UK has no Constitution not because it is simply un-codified and unwritten but because there are no tangible elements of constitutionalism in the UK law. One such authority is Ridley who argued that that none of the characteristics that attend a constitution are found in UK. These characteristics are: it is the creator of the government and therefore precedes it and not a part of it; it involves a constituent power; it is superior to all other laws, and; it is well-established and embedded in the political system. According to one author, the nature of Ridley’s four constitutional requirements can be most likely satisfactorily met by the written constitutional form. The implication is that, were the UK constitution codified or in a documentary form, Ridley would not have proposed his thesis. 16 On the basis of some other known characteristics of constitutionalism, it would seem that Ridley’s theory is not absolutely persuasive. Constitutionalism is defined by some as possessed of the following elements: separation of power; legitimacy of the power being exercised; legislating in accordance with set procedures; limitations on laws, and; rights that are entrenched in addition to being either in a written or unwritten form. The power-allocating aspect of constitutions is implied in Ridley’s first characteristic, i.e. government-establisher. In this respect, the UK principle of parliamentary sovereignty does prove the existence of power separation in the state as the legal interpretative role of the judiciary implies the existence of a constitution. The only contradictory argument against this position is the element of constitutional convention, rather than constitutionalism itself, in some of the governmental power distribution like that of the sovereignty as discussed earlier or the obligatory nature that a vote-of-no-confidence has in the resignation of the government. Similarly, the legislation of laws is assigned only to one body, i.e. the Parliament, and therefore being controlled is an argument for UK constitutionalism. 17 In addition, the enactment of the HRA in Great Britain and the Scotland Act imply that that to a certain extent “a modest dose of constitutionalism” is being infused into the UK government by these reforms albeit they do not create total legal supremacy because they cannot invalidate legislations passed by the UK Parliament. Nevertheless, these legal reforms introduced substantive limitations on governmental power and the devolution of governmental power to a particular area, respectively, which are classifiable as higher powers in other jurisdictions. The implication here is they bolster UK constitutionalism. On the other hand, these developments do not entirely repudiate Ridley’s “no constitution” charge as Scotland sovereignty is limited by what the devolution law calls ultra vires act or those in breach of Community law. And although the rights of the citizens of UK are bolstered by the HRA enactment, the latter cannot be said to have fully entrenched itself because Parliament still retains the option to repeal it. 18 Q7 Should the culmination of the recent programme of constitutional reform be the adoption of a written constitution in the UK? What would this entail, and what considerations should inform the process of taking such a step? What challenges are faced in creating a written constitutional and could difficulties be overcome? The advantages of a written constitution is that it has the status of a higher law upon which all other laws of the land must confine itself and the most important thing is that it usually contains the bill of rights. However, it does not possess the flexibility of an unwritten constitution nor it is possible to contain all legal principles of a state in a one piece of a document. However, a written constitution can assure the control of arbitrariness that high government officials are prone to as well as clearly delineate the powers and functions of each of the branches of the government and the concrete institution of the system of checks and balances. It ensures the impossibility of an implied and furtive elected dictator and it eliminates the loopholes in ministerial accountability. 19 A written UK constitution therefore, would help promote a better and stable political system for the UK yet the fact that the state had survived this long without a written constitution and many other states with written constitutions have not done well is an argument against adopting one. The difficulty attendant to adopting a written constitution is the fact that the present unwritten constitution of the UK consisted of a voluminous number of sources and outlining them all into a single piece of document might prove to be trying. Some of these sources are: statute law; common law; treaties and EU law; conventions, and; works of authorities. 20 In addition, the adoption of one needs the ratification of the people and it might not be easy or adequate enough to a people who have long been used to a political life governed by an unwritten constitution. Q8 Commentators have discarded ‘cabinet government’, along with ‘parliamentary government’, as apt descriptions of the nature of British central government in favor of “party government’, administrative government, ‘prime ministerial government’ or more subtly government by prime minister in cabinet’. What is the author referring to, explain? Do you agree? The party government refers to the notion that the British central government is ruled by a party system, that is “political assumptions and conventions in Britain are geared to the idea of government by two alternating parties, each enjoying an almost complete monopoly of power and patronage.” Since there is no written constitution the party government remains uncontrolled in the absence of an effective system of check and balance nor hampered by legal scrutiny because they are not incorporated as body corporate. 21 As an administrative government, the author must have referred to the fact that the British government is being run and governed by the dual system of administrative government in which the central government supervises and delegates power and at the same time setting limits on such power to the local governments and the latter acts as agency of the central government by carrying out its duties and functions in the grassroots levels. 22 Prime Ministerial government simply refers to the dominance of the role of the Prime Minister in running the affairs of the government in Britain whose powers include the following: the power to select, shuffle and dismiss ministers, to control the business of the cabinet, to appoint key civil servants, and to control the machinery of the ruling party.” The Cabinet government that dominated the post war era has now been steadily replaced by the Prime Ministerial government as the former now gradually is turning much like into the US cabinet whose members are all accountable to the US President. 23 Q9 Using relevant case law to support your answer, identify and critically analyze the different tests for determining whether a public decision is unlawful on the ground of “bias”? What impact, if any, does the adoption of the Art. 6 of the Convention requirement have for claimants who wish to argue that a decision is unlawful on the grounds of bias. Article 6 s 1 of the European Convention on Human Rights which was adopted as Art 6 s 1 of the HRA 1998 states, to the effect, that a person who is being civilly and criminally held in a court of law shall be entitled to a fair, public and speedy trial before an impartial and independent tribunal. In the case of Piersack v Belgium, 24 the ECJ defined impartiality as “the absence of prejudice or bias.” To determine impartiality the ECJ formulated a two-fold test which involves subjective and objective considerations. The former involves establishing the personal convictions of the judge in a particular case whilst the latter looks at the judge’s inclusion of measures that would ensure the preclusion of any partiality. 25 The Subjective Test. In the case of Boeckmans v Belgium, 26 the President of the Court of Appeal gave negative comments against the applicant’s defence while it was on appeal. It crippled the appellant’s case and as a result the sentence against it was increased. The Commission admitted the case and a settlement was reached, Belgium acknowledging that the comments of the President were contrary to Convention rights. However, in the case of Mr and Mrs X v the UK, 27 the negative comments made by the judge in the absence of the jury, to the effect that the case at hand was a hopeless one and that it strained public funds unnecessarily did not amount to impartiality, according to the said body. The Court was not quick to admit the case as it did in the first case, noting that the determination of the guilt or innocence of the accused was not left to the judge. Furthermore, the Commission rationalised that partiality or the lack of it must be viewed in their entirety and not on a single aspect alone. 28 The Objective Test. In the case of Cubber v Belgium, 29 the bone of contention was the presence of the investigating judge in the trial court as he both performs the twin functions of investigating and sitting on the trial bench. Taking the objective approach, the Commission held that being responsible for the initiation of the prosecution of the case and sitting at the trial bench thereafter could result in an unconsciously preconceived frame of mind which could be adverse to the applicant. 30 The impact of the adoption of the Art 6 of the Convention on claimants is that it would be easier to bring a case of impartiality against a public decision because the need to go straight to the Strasbourg Court has been eliminated. References: Amministrazione delle Finanze Stato v Simmenthal SpA [1978] ECR 629, 645-46 ECJ, http://www.ena.lu/ Boeckmans v Belgium, Application No. 1727/62 Bogdanor, V 1981, The People and the Party System: the Referendum and Electoral Reform in British Politics, Ed: illus, CUP Archive. Costa v ENEL, [1964] ECR 585, 586 ECJ. Cubber v Belgium, Application No. 9186/80. Davis, H 2007, Human Rights Law: Directions, Oxford University Press. Factortame Ltd & ORS v Secretary of State for Transport, ECJ Case C-213/89. Fairclough, P 2002, AS and A Level Government and Politics Through Diagrams, Ed: illus, Oxford University Press US. Fenwick, H & P Fenwick & G Phillipson 2003, Text, Cases & Materials on Public Law & Human Rights, Ed: 2, rev, Routledge Cavendish. Fenwick, H & G Phillipson 2003, Constitutional and Administrative Law, Ed: 4, rev, Routledge. International Transport Roth GMBH and other v Secretary of State for the Home Department, bailii. [2003] QB 728, [2002] EWCA Civ 158, http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2002/158.html&query=title+(+Roth+)+and+title+(+v+)+and+title+(+Secretary+)&method=boolean Mr and Mrs X v the UK, Application No. 4991/71. Newman, P & A Thornley 1996, Urban Planning in Europe: International Competition, National Systems, and Planning Projects, Ed: illus, Routledge. Peele, G 2004, Governing the UK: British Politics in the 21st Century, Ed: 4, illust, annotated Wiley-Blackwell. Piersack v Belgium, Application No. 8682/79 [1984] 7 EHRR 251. R (H) v Mental Health Review Tribunal N&E London Region, EWCA Civ 415 [2001]. Sharma, S R 2003, Encyclopaedia of Constitutional Law, Anmol Publications PVT. LTD. Stavros, S 1993, The Guarantees for Accused Persons under Article 6 of the European Convention on Human Rights: An Analysis of the Application of the Convention and a Comparison with other Instruments, Ed: illus, Martinus Nijhoff Publishers. Thomas, G.P. 1998, Prime Minister and Cabinet Today, Ed: illus, Manchester University Press ND. Turpin, C & A Tomkins 2007, British Government and the Constitution: Text and Materials Edition: 6, illustrated, revised, Cambridge University Press. Wright, A & R Clements 2002, The British Political Process: An Introduction, Routledge. Read More