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Constitutional Law reading week 6 Bringing Rights Home?
Bradley and Ewing, chapter 19 o Dicey said that no statement of rights was needed because common law and independent parliament guaranteed rights o They argue that this is inadequate: The common law doctrine that I am free to do whatever is not prohibited by the law applies to govt as well as to individuals, so that the govt can impede rights where no law stops them e.g. in Malone v MPC 1979 a man's telephone was tapped by govt but the court could not order that the telephone tap be removed because govt had breached no law. This was reversed by European court of human rights (relying on a STATEMENT of rights) o Similarly, Dicey's doctrine doesn't guarantee that the legislature wont introduce legislation that destroys civil rights if, say, the legislature happens to be authoritarian in composition: he merely thinks it to be improbable- not good enough assurance o Another problem is that sometimes courts enhance rather than reduce exec's power e.g. in Moss v McLachlan the Divisional court inferred from the fact that the police had the power to break an assembly up that they had the powers to prevent an assembly from occurring o Another weakness is that parliament is no longer such a powerful check on govt e.g. party whips, patronage, fusion of exec and legislature, Parliament Acts etc, so that legislature cannot usually withstand executive bills limiting freedom e.g. The Serious Organised Crime and Police Act 2005 extended police powers to prohibit and regulate public meetings and assemblies. o Sometimes unrestrained liberty for one person meant loss of rights for another e.g. unrestrained freedom of contract caused discrimination and loss of job opportunities to ethnic minorities, so that the Race Relations Act 1976 was introduced. This is an example of parliament acting in a way that Dicey envisioned: legislating to restrict gross abuse of civil rights o The ECHR was an international treaty, ratified by parliament and in force since
1953. Its authority derives solely from consent of states who are parties to it. Initially European Commission of Human Rights would inquire into alleged breaches of the treaty where one STATE made allegations about breaches by another OR where a STATE had recognised the competence of the commission to pursue a claim made by an NGO or private citizen. Then, if the commission couldn't secure a settlement either the council of ministers would resolve the
dispute by a 2/3 majority or a case could be brought before the European Court of Human Rights. A case could only come before the court where a state had accepted the compulsory jurisdiction of the court or where the state allowed a case to be brought. Only the commission or the state could actually bring a case. o However, under 11th protocol the commission was scrapped and anyone could bring a case directly to the court of human rights, provided they had exhausted domestic remedies and brought the claim within 6 months of the final domestic decision. Prior to the case, a panel of 3 judges determines the admissibility of the claim (questioning right to petition, relevance to ECHR, ill-founded etc) o The changes prevent the states having so much control and instead allow individuals to pursue their claims to rights. When Countries are held in breach of the convention rules, they often amend legislation so as to comply. o HRA incorporated ECHR into UK law due to fears over how long it took to bring a claim in Strasbourg + fact that peope had to make the long trip over there +
fears that British law was a poor guarantor of rights (proved by UK's poor record before European Court of Human Rights-possibly due to trusting parliament to self-regulate, as opposed to judicial review- Dicey's interpretation) o The government is against the ability of courts to set aside PRIMARY legislation due to concern for parliamentary supremacy. Bradley and Ewing say that it doesn't matter since s.3 is powerful way of changing legislation: judges tend to use statutory construction even where law is NOT vague and the interpretative obligation exists even where this goes against the intent of parliament. However, the recognised limitation to construction in s.3 means that courts will not construe legislation n a way that is totally incompatible with a fundamental provision of the legislation, and the courts respect the difference between construction and amendment: i.e. parl still has the right to make incompatible legislation.(these principles of construction come from Lord Nicholls in Ghaidin v Godin-Mendoza and have been accepted by other judges). o S.4 (2) is the declaration power: political sanction. Lord Steyn has argued that s.3 ought to be used more widely and often that s.4 (2) because only s.3 can actually provide a remedy (possibly judicial review of primary legislation by the back door) o If a declaration of incompatibility is made, then govt will normally be expected to introduce primary legislation to amend the offending provision, or, under a REMEDIAL ORDER a minister can arbitrarily amend legislation to remove the incompatibility- This is a MASSIVE Henry VIII clause, even though B & E say it has been rarely used. The purpose is to resolve rights issues quickly, but it could be open to abuse. It isn't quite so bad since it is secondary legislation and can therefore be reviewed by the courts.
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