The Role of the Judiciary - Essay Example

Question A: The Courts Since the coming into force of the Human Rights Act 1998 The role of the judiciary has always been viewed as one of mediation between the Government and the public. This view is predicated solely on the theory that a democracy demands indiscriminative justice for all.1 In other words, governments and the public are accountable to one another via judicial review and the rule of law. The justicability of the UK courts however has always been compromised to some extent by judicial deference to parliamentary sovereignty. This deference has never been more significant than it has in recent years with respect to the introduction of the Human Rights Act 1998 which came into force in October 2003. Conventional wisdom dictates that once a country adapts a codified Bill of Rights or constitutional provisions it will generally require: “…courts to grapple with justifications for rights and freedoms, taking a more philosophical approach to legal reasoning as they attempt to resolve conflicts between individual rights and competing societal and individual interests.”2 While the Human Rights Act 1998 did not officially implement a UK Bill of Rights it did indorse Convention Rights under the European Convention on Human Rights.3 By the time the Human Rights Act 1998 came into effect in October 2000 the UK judiciary had already become accustomed to the application of Convention Rights as a Member State to the European Community.4 However as Fenwick, Phillipson and Masterman observe: “…at the same time they were proud of their long-established common law and constitutional traditions, including deference to parliament and to the executive in judicial review cases, as manifested in the Wednesbury doctrine.”5 The Wednesbury doctrine is the approach adapted by the courts in respect of judicial review in Associated Provincial Picture Houses Ltd v.Wednesbury Corporation [1948] 1 KB 223. In this case it was held that the applicant for judicial review is required to satisfy the court that no reasonable public official would have reached the conclusion that the official under review came to.6 Moreover, the court went on to state that it will not stand in an appellate position to overrule an official decision it will only stand as a judicial authority to determine whether or not the public official offended the law in its abuse of authority.7 While the judiciary maintains that the Wednesbury doctrine remains a guiding principle the courts have displayed a willingness to depart from this strict doctrine and to loosen the grip of judicial deference. This deference has never been more significant than it has in recent years with respect to legislative changes calculated to counter modern threats of terrorism. For instance the House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68 took the position that while the Secretary of State was given authority under the Terrorism Act 2000 and its subsequent amendment the Anti-Terrorism, Crime and Security Act 2001 to derogate from certain convention rights in the interest of national security, that derogation was required to be conducted according to the letter of the law.8 In this case certain non-UK residents (the appellants) were held in custody while UK residents suspected of the same conduct were released. The appellants argued that they were not accorded equal treatment at mandated under the European Convention on Human Rights. On the other hand the Secretary of State argued that the new anti-terrorism legislation mandated derogation from the Convention rights in the circumstances of the case.9 The judiciary as expressed in the case of A v Secretary of State for the Home Department [2005] is not prepared to lightly second guess or review Parliament’s derogation or legislative choices when matters of national security are at risk. The House of Lords stated that terrorism was a real and serious threat and the wide scale and catastrophic potential of terrorist groups was not to be “overlooked.”10 While the courts will safeguard the interests of the accused person and ensure that justice is done according to the law, the courts are not however, at liberty to make policy decisions. That function is strictly for Parliament.11 Be that as it may, the House of Lords maintained that it is for the court to ensure that Parliament does not exceed its powers and on the fact of this case it had. The derogation order while it was an order that Parliament was entitled to make, the circumstances did not justify it. There was no obligation to extend deference to the Secretary of State since: “The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review.”12 In a manner of speaking the House of Lords were indorsing the appellants’ right to ask for judicial review of the derogation order on the grounds of proportionality. While the judiciary would not question the power to make the order and would give deference to the Home Secretary’s decision, “the courts are not effectively precluded by any doctrine of deference from scrutinising the issue” of proportionality.13 The Home Secretary and all branches of the executive are accountable to Parliament and the Court’s role is to ensure the rule of law.14 Following the implementation of the Human Rights Act, the courts have not always been consistent and a return to judicial deference was evident in the case of Hussain v The Hounourable Mr Justice Collins and The Crown Prosecution Service [2006] EWHC 2467. In this case it was held that a high courts judge’s decision to permit police detention of a suspect under the Terrorism Act 2006 for a maximum period of 28 days was not subject to judicial review.15 It was held that where a decision was of such importance that it required the discretion of a high court judge that decision would be final.16 In another case Ezeh and Connors v. The United Kingdom - 39665/98;40086/98 (2002) ECHR 595 the courts demonstrated more of a willingness to review judicial assessment. Previously a Governor’s decision to deny legal representation of the appellants had been upheld by a single high court judge in 1997 on the basis that it satisfied the Wednesbury doctrine since prior to adjudication the appellants had not taken advantage of the opportunity to consult with legal counsel and had not indicated at any time prior that they desired legal representation. While acknowledging that the prison governor was at liberty to take this stand under domestic laws and policies it had clearly violated Convention rights.17 In the final analysis, the judiciary will adhere to the Wednesbury doctrine on matters involving domestic issues alone. However, if and when Convention rights are contravened the courts will intervene pursuant to the provisions of the Human Rights Act 1998. Any exceptions and derogations from these provisions in the public interests are required to be justified in a manner consistent with Convention rights. Question B: Constitutional Issues The United Kingdom has a multi-layered constitutional system rather than a unitary system, in that outside of the UK’s Parliamentary and judicial system the UK is bound by the European Conventions. Judicial review is therefore crucial to the integrity of the constitution. There is a conflict of interests however in the measure of judicial restraint and/or deference required in cases where Parliament makes a decision that which conflicts with the Constitutional regime. If the judiciary fails to identify and sanction conflicts and Parliament’s excessive exercise of its power there is a danger that the public will lose confidence in its judiciary. On the other hand, if the judiciary sanctions Parliament all too often the public will lose confidence in the government. In A v Secretary of State for the Home Department [2005] the House of Lords attempted to strike a delicate balance by setting the parameters. While acknowledging that Parliament did have the power to derogate and the decision to do so was entirely a political decision separate and apart from a judicial function, the court ruled that it was at liberty to ensure that the power was exercised according to the law. Ian Burnett, QC is quoted as having said: "The taking of measures to combat terrorism involves a heavy political responsibility, and it is critical that there be proper political accountability if errors are made."18 Although Burnett had not intended to, his statement is a close reflection of the impact of the House of Lords’ ruling in A v Secretary of State for the Home Department [2005]. The courts’ deference to the executive will be restrained within the parameters of the law. In order to preserve the integrity of the democratic process, that deference will not be compromised in favor of government autonomy. The government will be accountable via the process of judicial review in an appropriate case. Political decisions, while properly a matter for parliament will not be reviewed unless and until they involve legal issues. The latter being a matter for the judiciary, will not be left entirely up to Parliament. The constitutional implications in respect of the implementation of the Human Rights Act 1998 can be viewed as a mere endorsement of previous constitutional law. In fact many judges had already taken the position that common law had adequately provided for the protection of human rights to which judicial review was applicable.19 In fact Lord Woolf commented in Attorney General’s Reference (No. 1 of 2004) [2004] 2 Cr App R 27 the judges today continue to take the position that: “Article 6 does no more than reflect the requirements of fairness which have long been a part of English Law.”20 D. Nicol describes the Human Rights 1998 as a ‘unique constitutional instrument designed to enable Parliament and government, as well as courts, to participate in giving: “..further effect to fundamental rights.”21 Prior to the enactment of the Human Rights Act, British Courts could not review legislative provisions when they contradicted Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms. History dictates however, that the courts will only apply the law as it is legislated by parliament and will not question the judgment of the legislature. With the introduction of the Human Rights Act 1998, Parliament acceded to an element of Community Supremacy which the Courts have adhered to. But by doing so, the courts claim to merely be complying with Parliament’s rule of law and to a great extent recognizing parliamentary sovereignty. The Human Rights Act 1998 merely represents a further concession in favor of the doctrine of Community Supremacy. This concession was surrendered by the UK Parliament by virtue of the Human Rights Act 1998 Section 3(1). Section 3(1) provides as follows: “…so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”22 Moreover, Section 4 provides that if there is a conflict between the domestic statute and Community law, higher courts are required to make a declaration to that affect. Any such declaration will not have an impact on the validity of the domestic provision. There is also no legal obligation to alter or otherwise modify the offending domestic provision. In fact: “It remains in force, as law that the court must continue to apply and the declaration, as per s4(6), does not give rise to any remedy for the party whose Convention right has been overridden.”23 Lord Hoffman commented on the impact of these key provisions of the Human Rights Act in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131. He noted that: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”24 The relevant provisions of the Human Rights Act and the European Communities Act are relatively straight forward. However Section 2(4) of the 1972 Act does make provision for the suspension of the doctrine of implied repeal which does give way to some difficulties within the British Courts. Section 2 (4) is coached in terms that oblige the British courts to interpret not only past and existing but also future laws, where possible, in such a manner as to make them consistent with the Community.25 In assessing the constitutional implications for the implementation of the Human Rights Act and the courts’ application of it, it is fair to say that the UK Courts have always recognized some kind of supremacy. The judiciary is also able to appreciate that the only difference between Parliamentary sovereignty and Community Supremacy is that the former are officials elected on a domestic level and are better equipped to recognize and regulate domestic matters and issues. When adjudicating over matters that invoke European Law the judiciary has a more challenging task in that they are obliged to leave domestic policies aside and adhere to the strict application of European law. Works Associated Provincial Picture Houses Ltd v.Wednesbury Corporation [1948] 1 KB 223 (CA) Attorney General’s Reference (No. 1 of 2004) [2004] 2 Cr App R 27 (CA) A v Secretary of State for the Home Department [2005] 2 AC 68 (HL) European Communities Act 1972 Ezeh and Connors v. The United Kingdom - 39665/98;40086/98 (2002) ECHR 595 (ECHR) Fenwick, Helen. Phillipson, Gavin and Masterman, Roger. (2007) Judicial Reasoning Under the U.K. Human Rights Act. Cambridge: Cambridge University Press Human Rights Act 1998 Hussain v The Hounourable Mr Justice Collins and The Crown Prosecution Service [2006] EWHC 2467 (HC) Irvine, Alexander or Lairg. (2003) Human Rights, Constitutional Law and the Development of the English Legal System: Selected Essays. London: Hart Publishing Laws, John, Sir. ‘Is the High Court the Guardian of Fundamental Human Rights?’ [1993] PL 57. Nicol, D. "Are Convention Rights a no-go Zone for Parliament?" Public Law, Autumn [2002], pp.438-448. R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 131 (HL) Travis, Alan. “Judge ‘misunderstood anti-terror legislation’”. The Guardian. July 4, 2006 Turpin, C, (2002) British Government and the Constitution: Text, Cases & Materials, Butterworths Read More