July 01, 2006
Human Rights Act
2. It's unenforceable. The 'constitutional' argument, as stated by, among others, Tim, the DK and Nosemonkey. This states that since it is impossible to entrench legislation in Parliament, any statute passed would be, effectively, good only for as long as the Government that passed it. This is of course entirely correct. It is also rather irrelevant. No, you can't entrench legislation in the British constitution. This applies as much to the HRA as to any prospective Bill of Rights. Tim Worstall says that you could sign an international treaty to circumvent this problem, but there's already precedent (Mortensen v someone or other if you want to know) to say that any British statute, however minor, trumps any international treaty, however, major. With the HRA, the power of the judges is embarrassment, no more and no less. If a statute passed by Parliament is in contravention of the HRA the judges can say that, but no more. If a British citizen takes a case to the ECHR, all they can do is make a 'precatory' judgment - they have no power to enforce it in this country.
Is that actually true? That any British law trumps any international treaty? Like the EU treaties?
Yes, of course. The sovereignty of Parliament means just that. Unless Cameron proposes a full scale constitutional revolution, his attempt to change the balance of legislative, executive and judicial power inherent in the relationship between the HRA, the ECHR and the British Constitution is a complete waste of time. What he seems to be proposing is a "declaratory" bill of rights. Almost as much of a waste of time and money as an English Parliament...
Posted by: Bondwoman | Jul 1, 2006 8:24:11 AM
Was the English Parliament sovereign prior to the Act of Union? If so, it did not have power to bind its successors and it still exists, ready to cancel the Act of Union and restore sanity to England. B^)
Posted by: Tom Paine | Jul 1, 2006 10:26:29 AM
from my notes:
Must an Act of Parliament be applied?
Professor Dicey, a Victorian constitutional authority believed that political sovereignty resided in the people, but that legal sovereignty rested in the Queen in Parliament, which is comprised of the House of Commons and the House of Lords acting under Crown prerogative. He also held that Parliament is the supreme law-making authority, whose legislative powers are unlimited, and that no other body has authority to rule on the validity of its enactments.
Lord Campbell echoed these views in Edinburgh & Dalkeith Railway Co. v. Wauchope (1842) 8 Cl & F 710:-
‘all a court of justice can look to is the parliamentary roll; they see that an Act has passed both House of Parliament, and that it has received the Royal Assent, and no court of justice can inquire into the manner in which it was introduced into Parliament, what was done previously to its being introduced, or what passed in Parliament during the various stages of its progress through both Houses of Parliament...’
This is now known as the Enrolled Bill Rule, and underlines the separation of powers of the legislature and judiciary.
Furthermore, in Mortensen v. Peters (1906) 14 SLT 227:-
Mortensen was a captain of a Norwegian fishing vessel charged with fishing illegally within a five mile limit. He claimed that as there was a three mile limit under International law, Parliament had no jurisdiction.....the appeal as turned down with Lord Justice General making the following comment:-
‘For us an Act of Parliament duly passes by Lords and Commons and assented by the King, is supreme, and we are bound to give effect to its terms...’
Lord Woolf, current Master of the Rolls, challenges this view; ‘However, if Parliament did the unthinkable then I would say that the courts would also be required to act in a manner which would be without precedent....there are even limits on the supremacy of Parliament which it is the courts’ inalienable responsibility to identify and uphold.’
Parliament would have to pass an Act so extreme to cause a judge to defy it, thereby risking his job and possibly his freedom. Furthermore, the Law Lords may owe their positions to their intellect, industry, and influence but they have no democratic legitimacy.
The Human Rights Act 1998 stipulates that legislation - both primary and secondary, past and future - must be interpreted in accordance with the Convention ‘so far as it is possible to do so’. A declaration that legislation is incompatible with the Convention rights will not of itself have the effect of changing the law, which will continue to apply, but it will almost certainly prompt the Government and Parliament to change the law (so keeping the illusion of Parliamentary Sovereignty). To the extent that it affects the meaning of a legislative provision, the courts will not be bound by previous interpretation. They will be able to build a new body of case law, taking into account the Convention rights.
Public authorities exercising executive powers must comply with the Convention. This will form a new basis for Judicial review strengthening their control over the executive, while judges’ ability to strike down secondary legislation and make declarations of incompatibility on primary legislation will lessen the executive’s control over the judiciary in that they must apply the laws.
The Convention is often described as a ‘living instrument’ because it interpreted by the European Court in the light of present day conditions and therefore reflects changing social attitudes and changes in the circumstances of society. In future UK judges will be able to contribute to this dynamic and evolving interpretation of the Convention. This increases the judges’ control over the legislature.
Posted by: John Gill | Jul 1, 2006 11:25:41 AM
"interpreted ... in the light of present day conditions and therefore reflects changing social attitudes and changes in the circumstances of society. ...this dynamic and evolving interpretation of the Convention."
What elegant phrases for the notion that we shall be ruled by judicial whim.
Posted by: deariemoi | Jul 1, 2006 11:56:07 AM
Am I too late to comment? "Judicial whim" seems absolutely right.
Posted by: Karl Rove | Jul 1, 2006 12:31:04 PM