The Approach of the Law Lords to Statutory Interpretation - Essay Example

The approach of the Law Lords to sta y 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. It consists of three main innovations: first, it explicitly prohibits a state agent or public official from violating the rights enshrined in the ECHR, second, it allows UK courts to hear human rights cases without the applicant or complainant having to go to the European Court of Human Rights in Strasbourg, Austria; and third, it harmonises UK legislation with the rights embodied in the ECHR, such that if a particular piece of UK legislation is susceptible of two interpretations, the interpretation consistent with the ECHR shall be upheld. 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 court can interpret legislation pursuant to Section 3. The first is to “read in” Convention rights, as for example in the case of R v Offen where the phrase “exceptional circumstances” was construed in a manner that made the power to impose life sentence comply with the proscription against inhuman and degrading treatment. (2004, Web). The second way is to “read down” (ibid) by applying a narrow interpretation to the statute to ensure compliance with the Convention. A very interesting and illustrative case that came up in the post-HRA era is the case of Percy v. Director of Public Prosecutions [1995] 3 All ER 124, [1995] 1 WLR 1382, 159 JP 337, [1995] Crim LR 714 in which the appellant was charged for defacing an American flag at an American air base by writing on it “Stop Star Wars” and then stomping on it. It was ultimately found that appellant’s conviction under the Public Order Act was inconsistent with her rights under the European Convention on Human Rights. More importantly, however, the court looked at public protest using the framework of freedom of expression. Indeed, we see how the jurisprudence on public protest continues to evolve, taking on different dimensions and permutations, depending on how it is interpreted at a particular juncture, and under what specific conditions (Fernwick, 1999: 494). Public protest is inordinately important because, To quote Barnum, ‘the public forum may be the only forum available to many groups or points of view’. (1977: 310) Commitment to Human Rights Obviously, the intent of Section 3 and the ECHR is to compel states to hew as closely as possible to the important objectives of the latter. Indeed, the protection of human rights is one of the fundamental aspirations of international law. It is indisputable that the promotion of human rights is and should be a global aspirations and civilized nations are bound to treat these rights as inalienable. To quote from Hersch Lauterpacht, in his article International Law and Human Rights, “fundamental human rights are superior to the law of the Sovereign state.” (1950: 206) In international law, the primacy of the State is the core principle of the international legal regime as it is traditionally known. (Steiner and Alston, 2000: 5). It is the duty of international law, therefore, to interlock authority with power, and to ensure that authorized decision-makers regulate the actions of States. Say Abrams and Ratner: Societies long reluctant to investigate or prosecute human rights abusers have begun to do so with greater frequency. These include both those inquiring into the abuses of their own officials or former officials, as well as those investigating or prosecuting individuals who have committed abuses in other countries. (2005: 160) The problem sometimes is the difficulty in divining how the European Court of Human Rights looks at human rights cases and interprets the Convention. Just to give an example, In the case of Plattform “Artze Fur das Leben” v. Austria , the ECHR considered as protected speech a peaceful procession and open air service even though, as it said, “peaceful demonstration may annoy or give offense” But in the case of Steel and Others v. UK 67/1997/851/1058, ECHR, 23 September 1998, the ECHR held that the police agents were justified in restricting the protest because they might incite other people to violence. The ECHR as a check on the powers of Parliament This paper argues further that Section 3 of the HRA is a check and balance on the broad powers of government, which complements the creation of the Supreme Court. In 2009, a new innovation was introduced into the legal system of the United Kingdom. The Supreme Court was created, effectively replacing the House of Lords as the last court of appeal in the UK. It was created by virtue of the Constitutional Reform Act 2005, which made provisions for the same. Some critics have scorned this latest legal development as a cosmetic change that will burden the nation’s coffers, whilst some fear that it would lead to an American-style assertiveness wherein “the new top court will trump the role of legislators” (Bryan-Low and Bravin, 2009). However, there is growing traction for the idea that it as a democratic development that will be in sync with modern politics and its plethora of challenges. The statement of David Cameron demonstrates this well. He said, “The truth is, the interpretation of human rights legislation has exerted a chilling effect on public-sector organisations” (2011: House of Commons Address). He also suggested that there is a conflict between these human rights principles and a more mainstream sense of what is right and what is wrong. Here we see the possible conflict between the executive and the judiciary. Upon the executive is reposed the task of instilling peace and order and ensuring social harmony. But in so doing, it treads on tricky waters. There is indeed a very good chance that due process guarantees and human rights principles be abrogated in the name of law and order. The truth is that, since 1997, the New Labour introduced a panoply of new youth justice mechanisms designed to reflect the government’s tough new attitude against crime and disorder. These have only given rise to critical human rights issues that have not made the situation better. . In very strong words, Hogg called the Crime and Disorder Act 1998 “the latest step to enforce social cohesion by coercion (1999: 92).” In similar vein, Walsh stated that “the Government’s youth justice policy is more concerned with maintaining order within the community than with the welfare of the child. (1999: 135)” . Goldson criticises the policy for being devoid of logic and unmindful of precepts of due process. (2005) Allaying fears of an “activist court” This is not to say of course that there is never any conflict between Strasbourg and Britain. Indeed, Lord Chief Justice Lord Judge had been quoted as saying that UK courts should not be bound by rulings made by the ECHR. Statements of this nature are often made in the context of implementation of human rights directives, wherein the ECHR adopts a stricter construction of human rights prescriptions than the United Kingdom. Be that as it may, while the Human Rights Act is in force, the UK is compelled to take Strasbourg decisions into account. Certainly, one does not countenance an activist court, or a court that will become too big for its breaches. The branches of government must work together to provide a clear and coherent system of government for the British people, and squabbling co-equal bodies do not an efficient state make. On the other hand, there is merit to the assertion that an activist court is far superior than a rubber stamp court, especially in this day and age when questions confronting the state are almost never black and white but nuanced in many shades of gray. References Abrams J., Ratner, S. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (OUP, 2001), 1-25, 160-227. Barnum, D.G. (1977). ‘The Constitutional Status of Public Protest Activity in Britain and the US’. Public Law, 310-327. Lord Bingham of Cornhill. ‘A New Supreme Court for the United Kingdom.’ (2002). The Constitution Unit. Available at http://www.ucl.ac.uk/spp/publications/unit-publications/90.pdf Bonner, D, Fenwick, H. and Harris-Short, S. (2003). “Judicial Approaches to the Human Rights Act.” The International and Comparative Law Quarterly. Vol. 55, No. 3. 549-585. Bryan-Low, C. and Bravin, J. ‘A U.K. Court Without the Wig’. 19 October 2009. Available at. http://online.wsj.com/article/SB125573382497890937.html David Cameron. ‘Public Disorder.’ Address to the House of Commons. 11 August 2011. Full text available at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110811/debtext/110811-0001.htm Fernwick, H. (1999) “The Right to Protest, The Human Rights Act and the Margin of Appreciation.” 62 Modern Law Review, p. 494 Goldson, B. The New Youth Justice. (2000). London: Russell House Publishing. Hogg, J.G.. (1999) ‘Crime and Disorder Act: First Crack in the Threshold.’ 7 Family Law 574. Jepson, P. (2004). ‘Statutory Construction under the Human Rights Act: A Radical Departure’. Available at http://www.peterjepson.com/law/Human%20rights%20-%20stat%20interp.pdf Lauterpacht, Hersch. 1950. International Law and Human Rights. Connecticut: Archon Books. Sharp, M. (1935) ‘The Classic American Doctrine of Separation of Powers’. University of Chicago Law Review. Vol. 2, No. 3. Steiner & Alston, International Human Rights in Context, 2nd ed. (Oxford University Press, 2000) Walsh, C. (1999). “Imposing Order: Child Safety Order and Local Child Curfew Schemes.” Journal of Social Welfare and Family Law. 21(2): 135. Read More