This notion examines the approach to date of the courts to ss.3 and 4 of the Human Rights Act 1998 and the limit and nature of judicial deference to statute law, and by inference, Parliamentary sovereignty. It is based on literature from a variety of sources including journal articles, edited books, web resources research papers etc. The authors review come from a variety of backgrounds specifically including the three set of government i.e executive, legislature and judiciary. In undertaking this review, the intention is to provide a critical evaluation of the literature available and in concluding, to identify areas for potential further research and study.
Deference to the legislature
The aim of this paper, then, is on judicial deference to the legislature or more precisely, deference to legislation, given the confusing nature of the (unwritten) British constitution where the legislature and executive are mostly impossible to extricate.
The desire to re-establish suitable boundaries among the three branches of government drove the debate which exist Incorporation of the ECHR into UK law. There was implication across the political range, in judicial and in an academic circles, that is consisting broad human rights standards into UK law would lead to the failure of the British system of Parliamentary supremacy over the courts without the transparency that lead such constitutional quake in other jurisdictions.Basically put, the debate implicated whether an elected Parliament or unelected courts should have the final say in ascertaining what the law should be in a democracy (as different from the interpretation of that law).
There are many ways of describing this debate.An outstanding example can be found in an article by Danny Nicol entitled "Are Convention Rights a No-go Zone for Parliament?" In the one aspect he places what he terms incorporationists, who view Convention rights as upraised beyond the reach of statute and state which "only an independent judiciary, exempt from executive domination and above 'faction' can construe".
In Nicol's other angle are third-wavers for whom the HRA is a specific constitutional instrument designed to authorize government and Parliament, as well as courts, to engage in giving further effect to basic rights. From this overview, "the idea to be agreed to each Convention right is commonly self-evident".In other words rights commonly smash, if not with each other than at the very least with the pressing social requirements which can in certain aspects legitimately oblige them under the ECHR. When this happens "the demos would appear a better forum to decide these issues than the courts".
The new rules of statutory interpretation
As is by now an important new rule of statutory interpretation in HRA, s.3 is that primary and subordinate legislation, where primary legislation insists subordinate legislation to be framed in a specific way, must be read and given effect in a way which is compatible with Convention rights but only so far as it is possible to do so. Where it is not possible, the higher courts can issue a declaration of incompatibility under s 4(2) of the HRA.
Two contending views on what is meant by possible have come forth. Lord Steyn defined in R v A that unless a clear restrictions on Convention rights is fixed in terms it should be feasible to interpret an Act compatibly with the ECHR.
Lord Hope disagreed. He affirmed that you have to look entirely at the purpose of an Act, not just any express intention on behalf of Parliament as to whether it is confirm to interpret a statute compatibly with Convention rights or not.Accepting Lord Hope's principle, it might have been more suitable for the courts to have granted a declaration of incompatibility instead than efficiently re-write the new rape shield legislation.
In Offen v A the courts efficiently read-into the HRA itself a new section to supersede the current s.3. This section reads as follows.
"With regard to Art 5 and Art 6 rights, even if it is not possible to do so, the primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights to liberty and a fair trial unless a clear limit on a Convention rights is stated in terms."
Deference is one of the ways of resolving the tension between parliamentary sovereignty and basic rights which is created by the Human Rights Act between constitutional authority and legislative authority.
According to this approach the scope of s.3 is ascertained by the courts' construction of the boundaries of deference. As the courts have looked to the notion of deference to design their interpretative purpose under the HRA, the components which they refer to ascertain when and how the courts should defer have, certainly, developed more complex. They include rather uncertain concepts like "conditions and culture of the British State"as well as more specific elements such as whether the rights are absolute. The Laws L.J. and others, eventually ascertain the extent of judicial deference. Moreover, the potential range of deference/activism is eminently wide: "in some circumstances the deference is nearly perfect. In others it merely exists at all".
Generally, this aspect of deference took from Arts 5 and 6, based on due process and fair trial which create to the least deference, to national security and social/economic matters which the courts are very unlikely to analyze to any significant degree. This fluctuation is reckoned by the judiciary as a natural significance of the differing special responsibilities of the two branches of the state:
"The special responsibility of executive is the security of the State's borders. On the other hand the responsibility of judiciary's is the doing of criminal justice within their specific jurisdiction, not a no-man`s land, but a spectrum. The degree of deference owed to the democratic decision-maker must depend upon where the impugned measure lies within the scheme of things."
The argument that both constitutional and institutional ability gives the courts a major sign in justice issues is an influential one. As far back as 1993 in an article entitled The Democratic Entrenchment of a Bill of Rights, John Wadham described that Arts 5 and 6 of the ECHR should credibly be included in a list of Articles in an incorporated Convention which should be judicially specified; the rest being subject to the say of Parliament assisted by the scrutiny of a Joint Human Rights Select Committee.
But whatsoever arguments they must be in tendency of this proposal or the Canadian approach which is what Lord Steyn was thoroughly iterate in A, this was not the framework that Parliament passed in 1998. If we get closer to the Canadian approach this requires to be openly debated. The risk of proceeding through "the backdoor" is rebound which could be cease further progress. Misuse of s.3 to thoroughly re-write legislation in justice areas will threaten the cautious balance set in motion by the Act.
Moreover, a self-imposed forbearance by the courts from engaging in national security and social policy issues could weaken their ability to protect some basic rights altogether. As Simon Brown commented in Roth "The court's role under the Human Rights Act is as the guardian of human rights. It cannot renounce this responsibility".
The role of s.4 and the dialogue model
Comprehending that there cannot be no-go domain for judges under the HRA does not, however, indispensably require them to intrude on the proper role of accountable and elected politicians. The Act was explicitly structured to permit the courts to affirm rights while also retaining parliamentary supremacy. Behind the structure of ss.3 and 4 was a meticulous thought-out constitutional provision that longing to add principles of accountability into judicial proceedings without taking away whole policy areas to judicial limit and parliamentary transparency. In other words it wants to create a new arduous between the two branches of the State.
It is this new approach which the courts have failed to articulate properly, most apparently in the case of R v A. Contradictory, in the frame of that decision, one of the important factors behind the approval of the UK model was Canada's own rape shield case, in which the Canadian women's movement was astonished when the judicially encroached Charter of Rights they had also campaigned for capsize those provisions as a violation of the right to a fair trial.
It was with this endure that the British framework was developed. In the academic literature it could be called a dialogue approach or in the words of Janet Hiebert, a Canadian academic, a principle approach in which the institutions of the state impact each other, rather than the role of the judiciary being to care or correct the wrong decisions of the legislature.
Home Secretary Jack Straw stated in commons:
"Parliament and the judiciary must engage in a serious dialogue about the operation and development of the rights in the Bill ... this dialogue is the only way in which we can ensure the legislation is a living development that assists our citizens."
This prediction of the HRA is clearly far more logical with the approach of Lord Hope than Lord Steyn. To give peculiar consequences to the dialogue model needs a restoration of s.4. It needs judges to have reliance to issue a proclamation of incompatibility whenever it is not possible to apply s.3 and where they consider legislation, any legislation to be inharmonious with Convention rights.
Moreover, s.4 has come to be seen by the courts as an extent of final recourse because of the opinion that through issuing a declaration of inharmonious, then courts may force the executive, through Parliament, to change the law. In the case of Pearson and Martinez(the prisoners' voting rights case) where deference to the legislature was depend upon as part (admittedly a minor part) of the ground for not issuing a declaration of incompatibility and by significance in Poplar.
This approach does not sit properly with Lord Hope's statement in Shayler, that where compatibility cannot be accomplished without consenting decisions which have already been taken on the ultimate point at issue by the legislator. Then the only choice left to the court will be to make a proclamation of incompatibility under section 4(2) of the Act with the outcome that decisions as to when and how, to amend the legislation are left to Parliament".
The principle of the relational approach flies in the face of the premise in much of the legal sense that the so-called "booby prize" declaration of disharmonious should automatically actuate legislative change. It will not be a clue that the Act has failed when the day comes, as it certainly will that the government, with strong parliamentary backing, deny to amend a statute that the courts announce infringement of basic rights.
The aim of the HRA is to permit the courts to apply human rights obligations where they were once barred from doing so. It was not ordained so that the courts could have the final say in ways where there is no proper human rights answer any more than it permits them to renounce from their responsibility to examine on the grounds that it is outside their domain of competence.