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politics essay

Asked by jennakatherine | Mar 9, 2008 | AS Level > Politics > Homework
jennakatherine asks:

I have been set an essay for homework yet im not sure what to put in it.
the essay title is : To What Extent Is There Conflict Between The Judiciary And Parliament?
Please help

etutor answers:

The answer is that there is plenty - and that the conflict is growing. To answer this well, you need to understand the principle of judicial review, and the reasons for an ncrease in JUDICIAL ACTIVISM, many of which are directly connected with the passage of the Human Rights Act. I have explained all this below, and have included lots of examples and evaluation points. This material can be used for all sorts of questions focusing on the judiciary, so select what is useful in each case.

In the UK the judiciary is often seen as the weakest branch of government – it has no power of judicial review; its decisions are subject to appeal; parliament can change the law if it does not approve of judicial rulings. Unjust or highly controversial laws may be passed, which cannot be challenged by the judiciary – some argue that the laws banning handguns and the tightening of the anti-terrorist laws fall into this category. Moreover UK legislation (unlike that in, say, France) is normally tightly drafted, in effect limiting the ‘political’ power of interpretation by the judiciary. Nevertheless the courts are more willing to challenge governments. Over the last quarter of a century, the number of cases each year falling within the remit of judicial review has risen from under a hundred to over 5000. Hence judges have become more assertive and ‘judicially active’; they are now more willing to challenge legislation and ministers. They no longer confine themselves to strict interpretation of the law as it is written, and are more likely to view it in terms of its perceived intentions, as is normal practice in the EU. In this sense their rulings are often more ‘political’ than previously.

- There is evidence of greater sympathy for the rights of individuals, and for the rights of women, employees and ethnic minorities.

- There has been a marked tendency to declare that ministers and other authorities have acted ‘ultra vires’ – i.e. they do not have legislative authority for some of their decisions. Michael Howard, Home Secretary between 1992 and 1996, was a particular target of the courts, being over-ruled on ten occasions, on issues such as cuts in compensation to crime victims and treatment of asylum seekers. In 1994, the High Court declared unlawful his denial to convicted criminals of access to new evidence, while in 1996 it ruled against his recommendation of a mandatory minimum sentence for the convicted killers of James Bulger.

- Between 2001 and 2005 the then Lord Chief Justice Woolf who, for example, attacked Jack Straw’s proposals to lock up young offenders who twice breached their probation orders, seemed to be set on a collision course with Labour Home Secretaries. Blunkett was highly critical of the High Court ruling that fining lorry drivers for harbouring illegal asylum seekers was unlawful and, in the same year (2003), failed to overturn another ruling against his policy of denying food and accommodation to late asylum applicants. Indeed, the Government was defeated in the courts quite regularly over asylum and terrorism cases, and on compensation for miscarriages of justice, leading Blunkett to accuse judges of ‘seeking to undo Acts of Parliament’. Following Blunkett’s criticism, Woolf stated that the judiciary would prevent ministers undermining legal traditions - ‘If the executive acts not in accordance with the law, it is the job of the judges to say that loud and clear.’ The Constitutional Affairs Secretary, Lord Falconer, responded by saying that judges must not usurp the role of parliament and must exercise judicial restraint in their scrutiny of ministerial decisions.

- The UK also appears to be going down the American road in becoming a more litigious society, with the development of a ‘rights and compensation culture’. The trend has been reinforced with the incorporation of the European Convention on Human Rights (1950) into UK law from October 2000, which has given judges further opportunities to make rulings based on cases brought under the Convention. The courts can issue declarations that statutes are incompatible with the ECHR, though they cannot strike them down. Draft legislation is now examined by parliament’s Joint Committee on Human Rights to ensure that it will not be incompatible with the rights already incorporated. Hence, although the number of HRA cases arising from new legislation is in practice relatively few, the HRA is still having a significant, albeit less visible, impact on the way in which law is made. The courts have, however, often been active – they have, for example, upheld the rights of prisoners to vote in elections and to father children while in jail, and have restricted the techniques used by the police to incriminate speeding motorists. They have granted a right to pupils to wear full Muslim dress at school, and faced in both directions on the rights of patients to challenge the decisions of hospitals to withdraw treatment. In December 2004 the law lords ruled that the detention without trial of suspected foreign terrorists was unlawful, since it was discriminatory, as well as excessive when compared with the threat to national security. Nevertheless, key sections of the Human Rights Act can be derogated (suspended) when the government decides there is a national emergency, as occurred after the attacks on London on 7th July 2005.

The Human Rights Act is central to answering this question. Where an individual citizen believes that a parliamentary statute is in conflict with the Convention they may apply to the High Court for a judicial review (and, subsequently, on appeal, to the Court of Appeal, the House of Lords and the European Court of Human Rights in Strasbourg). Courts have no power to strike down parliamentary statutes. The Human Rights Act has 22 separate sections, and requires all Acts of Parliament to be interpreted and given effect, as far as is possible, in a way that is compatible with the rights of individuals set out in the ECHR. UK courts and tribunals must take account of ECHR rights in all cases that come before them. They must develop the Common Law in such a way as to ensure it is compatible with ECHR rights, take account of Strasbourg case law, and apply the same criteria as are applied by the European Court. A court may quash or disapply subordinate or secondary legislation (such as Regulations or Orders) or, in the case of a higher court, issue (directly to the government) a declaration of incompatibility in relation to primary legislation. This triggers a power that permits a government minister, through a fast track procedure, to make a remedial order to amend the legislation to bring it into line with the ECHR. If the minister decides not to do so, the offended party has the option of taking the Government to the European Court at Strasbourg. The Act makes it unlawful for any public authority, including all local authorities and the Welsh Assembly, to act in a way that is incompatible with ECHR rights. It allows a case to be brought before a UK court or tribunal against the authority in question if it is alleged that a decision or action has violated ECHR rights. Courts may award compensation or damages in civil cases. Legislation passed by the devolved Scottish Parliament and the Northern Ireland Assembly can also be challenged; since these legislative bodies are not sovereign, the court can instruct them to amend the law to ensure that it is compatible. Since the Treaty of Amsterdam all European Union legislation must automatically be compatible with the Convention; hence wherever EU legislation takes precedence over UK legislation, as provided for in the UK’s treaty obligations, UK law will of necessity be compatible with the provisions of the Convention.

The ECHR consists of eighteen Articles and six Protocols. Some of the rights specified are absolute. These include the right not to be subject to torture, or inhuman or degrading treatment (Article 3), the right not to be subjected to slavery or enforced labour (Article 4), the right to a fair hearing (Article 6) and the outlawing of retrospective criminal penalties (Article 7). Other rights are limited under ‘explicit and finite circumstances’, such as the right to life (Article 2), the right to liberty (Article 5) and the outlawing of discrimination (Article 14). The remaining rights are presented as qualified rights. These include the right to respect for private and family life, and for one’s home and correspondence (Article 8), the right to freedom of thought, conscience and religion (Article 9), the right to freedom of expression (Article 10) and the right to freedom of assembly and association (Article 11). Other key rights provided for in Protocol 1 are the peaceful enjoyment of property (Article 1) and the right to education (Article 2).

The scope of the ECHR, and thus the Human Rights Act, is very broad indeed, offering plenty of opportunities for citizens to have recourse to the courts; critics are deeply unhappy about the resulting ‘rights culture’.

Article 3 is perhaps the most wide-ranging in its coverage. Cases already brought before the courts include conditions in police cells, prisons, mental hospitals and other forms of detention centre. Others have involved corporal punishment and child abuse, deportation to countries where there is a real risk of torture or degrading treatment, and allegations of serious discrimination, especially in relation to acute racial harassment. The Immigration, Nationality and Asylum Act (2002) has already been the target of several cases, and has produced a number of instances where Home Secretaries have been over-ruled by the courts where they have imposed restrictions upon asylum seekers, in areas such as accommodation, education and benefits eligibility. The NHS currently faces a reported 1,500 cases, mostly under Article 3, and focusing on issues such as patients being required to wait for ten hours on a trolley in a hospital corridor.

Cases brought under Article 2 also raise all sorts of rights concerns. These include expulsion from the UK if there is a real possibility that the deportee’s life would then be at risk, and the duty of hospitals to safeguard a patient’s right to life, which calls into question the legality of any refusal to provide potentially life-saving treatment. In July 2003 a ‘right to life’ case was brought against a NHS trust on behalf of ‘Baby D’ whose doctors had concluded would be too ill for resuscitation. Her parents demanded more proactive treatment, but the court ruled that the baby should be allowed to die peacefully. There is also the question of a patient’s ‘right to die’ – for example, Diane Pretty, who suffered from motor-neurone disease, wanted her husband to assist in her suicide, but the court ruled that Article 2 could not be interpreted in a way that guaranteed a right to terminate life. Article 2 also covers death threats, which enabled the killers of James Bulger to obtain an injunction to protect their identities and whereabouts from press publication.

Article 5 has been the basis of appeal in cases concerning bail in criminal proceedings, police stop-and-search rules, military disciplinary procedures and the enforced detention of patients, held without consent under common law provision rather than the 1983 Mental Health Act, who are mentally ill.

Article 8 raises issues such as police searches of people’s homes and the use of covert surveillance, such as listening devices, the use of CCTV and the exchange of data obtained from it, and the rights of homosexuals and transsexuals. There have been several cases related to employees’ rights to privacy, including the monitoring of e-mails and telephone calls, mandatory drug testing while at work, and the imposition of ‘unreasonable’ dress codes. There have even been cases, based on the right to the ‘peaceful enjoyment’ of one’s home, that have sought rulings against aircraft noise and environmental pollution.

Article 10 can be applied to the rights of groups such as political demonstrators, whistle-blowing employees and those involved in industrial action. In one area at least – the right claimed by some celebrities to privacy versus press freedom to investigate and publish – there is a potential conflict with Article 8.

The scope of Article 14 is particularly broad, since it outlaws all forms of discrimination – on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, disability, age or marital status.

The ECHR does not prevent a government from taking decisive action in the case of an emergency or perceived threat to national security. Article 15 provides for a government to ‘derogate’ from its obligations under Article 5 during ‘war or other public emergency threatening the life of the nation’. In other words, it can under these circumstances restrict the exercise of certain specified rights and freedoms without violating the ECHR. This type of derogation was used in the case of the Anti-Terrorism, Crime and Security Act (2001). This Act granted the Home Secretary the power to detain indefinitely without trial any foreign citizen living in the UK who is suspected of terrorism and who, under the Human Rights Act, could not be deported to a country where the death penalty may be applied.

The most significant ruling under the Human Rights Act occurred in December 2004 when eight of the nine law lords declared that the 2001 anti-terrorism legislation breached the human rights of nine detainees being held in Belmarsh prison without trial. The Act was unlawful since it was discriminatory (applying only to foreigners), while it was also seen to represent an excessive reaction to the perceived threat of terrorism. The effect of the judgement was the government’s decision to steamroller through parliament in February and March a badly drafted replacement bill, replacing detention with house arrest wherever the security services (or police) have identified individuals, be they citizens or foreign, as posing a terrorist threat. In order to accommodate the objections raised by the House of Lords in particular, and to secure the eventual passage of the Prevention of Terrorism bill, the draconian powers intended for the Home Secretary were progressively watered down, with judges effectively made responsible for the new control orders. In 2007 control orders were ruled unlawful.

The courts have used the Act to block practically every attempt by the government to bring order to the asylum chaos. They have compensated the families of IRA terrorists killed by British soldiers, allowed a Royal Navy sailor to worship the Devil while at sea, and made an award to a convicted thief who maintained that his rights had been breached when he was filmed secretly by the police. They have ruled that travellers can ride roughshod over the planning laws that are applied strictly to all other citizens. Sixty gypsies were granted permission to turn an illegal encampment in Gloucestershire into a permanent settlement, a decision (under Article 8) resting on the human rights of the travellers outweighing those of local residents and damage to the environment. Prisoners can now be compensated for the breach of their human rights over slopping out since a Scottish court declided that the practice amounted to ‘degrading treatment’. In March 2005 the European Court awarded a convicted paedophile the sum of £5496 in costs and compensation for the ‘distress and frustration’ he suffered as a result of the ‘unreasonable’ delay in bringing his case to court.

In the same month the Court of Appeal overturned an earlier ruling of the High Court that had upheld the uniform policy of a multicultural school in Luton which had outlawed the wearing of an all-concealing jilbab by a Muslim pupil. Lord Justice Brooke ruled that the girl in question (who had long since left the school) had effectively been excluded, and thus ‘denied the right to education and to manifest her religious beliefs’ when the school had denied her access unless the regulation clothing was worn. The head teacher, herself a Bengali Muslim, allows her pupils, 79% of whom are Muslims, to wear the hijab headscarf and the trousers-and-tunic shalwar kameez; the head-to-toe jilbab is outlawed simply because of the likelihood that it would cause divisions in the school. Critics argued that the court’s ruling makes a mockery of any school’s ability to set its own uniform rules, since any pupil might now demand to dress in a way that ostensibly manifests his or her ‘religious beliefs’, irrespective of how provocative or extreme such a manifestation might be. The court’s ruling might also be seen as a victory for a minority strain (Hizb ut-Tharir) of fundamentalist, highly politicised Islam. The declared aim of the organisation is ‘to carry the Islamic call in a political way’; its website advocates a worldwide state based solely on the strict interpretation of sharia law.

The Act has placed enormous power in the hands of an unelected and unaccountable judiciary, and there is mounting evidence that judges are more than willing to use that power. The decision to incorporate the ECHR into UK law has deprived parliament of its historical role of determining, safeguarding and, wherever in its judgement necessary, circumscribing the liberties of British citizens. Lord Falconer’s predecessor as Lord Chancellor, Lord Irvine, was fond of saying that the ‘prophets of doom’ who feared the impact of the Human Rights Act had been ‘confounded’. During the second reading of the bill, in November 1997, Lord McCluskey warned that the Act would provide ‘a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers’. More precisely, he inveighed against ‘incorporating into our domestic law vague, imprecise and high-sounding statements of legal rights’, which would in turn ‘hand what is truly legislative power away from a democratic and accountable parliament to an appointed, unelected and unaccountable judiciary’.

In practice, while there have been some high-profile test cases such as over the right to health treatment, the right to war traditional Muslim dress at school and the right of prisoners to vote, the expected flood of claims has not materialised. Court cases citing the Act rose from 467 in the year after it came into force in October 2000 to a peak of 557 in 2002, before falling to 398 in 2005. Nevertheless, Cherie Booth’s (Blair’s) claim that the Act would ‘empower the weak and oppressed’ now seems risible, since it has acquired a very different image, as a refuge for terrorists and scoundrels. High profile cases in recent months are responsible for this image. Few, for example, envisaged that the Act would lead in May 2006 to the High Court granting 200 prisoners the right to sue the Home Office at taxpayers’ expense over their ‘human right’ to take drugs while in jail. Even fewer would have imagined that it would confer a human right to have a NHS heart transplant on a Nigerian visitor, or that it would confirm that the dying had a human right to euthanasia and the living a human right to reject a cancer-carrying embryo. Some critics of the Act contend it has also created a climate of fear where most public authorities, though not ministers, give in to all manner of outrageous demands out of fear of being sued and subjected to the lottery they claim the legal system has now become. Lawyers are exploiting the procedures of asylum boards, parole boards and employment tribunals to assert what really amounts to ‘a human right to disagree’ with any adverse decision taken by a minister or an agency.

The application of the Act does not always result in a perverse court ruling. In March 2006, for example, five law lords, allowing an appeal against a unanimous ruling a year earlier by the Court of Appeal, ruled that a schoolgirl refused permission to wear a full-length Islamic gown and subsequently excluded from school was not deprived of her right to manifest her religion. Lord Bingham said it would be ‘irresponsible’ for any court to overrule the school’s judgement ‘on a matter as sensitive as this’. Cherie Booth, QC, had argued that the school’s actions had deprived the girl of the right to manifest her religion under Article 9 of the European Human Rights Convention. But Lord Hoffman disagreed – ‘Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing.’ The law lords also dismissed the second of Booth’s arguments, that the girl had been denied the right to education, guaranteed by Article Two of the first protocol to the Convention. Lord Hoffman declared ‘that article confers no right to go to any particular school’, adding that ‘it is infringed only if the claimant is unable to obtain education from the system as a whole’.

The rulings of judges and, by extension, the Human Rights Act itself, became the object of ferocious press criticism in May 2006 after the Sullivan ruling, criticism that was not confined to the tabloids. Two Telegraph leaders ridiculed the Government’s claim in 1998 that the Act would protect the citizen against the state, maintaining that the individuals who had benefited most from the ‘protection’ were ‘criminals and terrorists’ and ‘scoundrels and foreigners’. The Act had been used by prisoners as the basis for demanding access to pornography and by illegal immigrants to avoid deportation on the ground that their own countries lacked Britain’s healthcare facilities. The ECHR was denounced as ‘an alien import, articulating a series of airy and contradictory principles which leave judges almost total scope for interpretation’. Hence the Act, like the ECHR itself, had effected ‘a massive transfer of power from the legislature to the judiciary’, with the contracting out of the interpretation of rights ‘to people over whom we have no control’. The newspaper called for the Human Rights Act to be scrapped. David Cameron, leader of the Conservative party, followed suit. Most critics were of the view that the whole notion of human rights had become thoroughly discredited. Rather than basic protections against the arbitrary exercise of power, human rights were now viewed as legal fictions that prevented the police, the intelligence services and other government agencies from doing what needed to be done to safeguard the nation.

The measures to reform the judiciary that were suddenly and clumsily unveiled in June 2003 initially provoked great alarm, and led to a battle royal between the government and the judiciary. The latter won several concessions, which were codified in the Constitutional Reform Act of 2005. The office of Lord Chancellor, threatened with abolition, has been preserved, and there is now a statutory duty imposed upon the holder of the office to uphold the independence of the judiciary. The Lord Chancellor’s traditional role as head of the judiciary was transferred in April 2006 to the Lord Chief Justice, with a concordat dividing functions between the two as part of a much more clearly focused separation of powers. The Lord Chancellor’s power to select new judges has been curtailed by the new judicial appointments commission, while a new supreme court will replace the appellate committee of the Lords as the highest court in the land. In one sense very little will change. The same judges (the present law lords) will have the same jurisdiction and will hear the same kind of cases, albeit in a different building (the Middlesex Guildhall) from October 2008. Yet the combination of the HRA, devolution and the creation of the new court will trigger a series of further changes. Over time there is likely to be a significantly different mix of cases for hearing, with far more cases of constitutional significance in areas such as the right to assisted suicide, privacy, relationships with the European Union and a variety of human rights issues. This has been the experience of the Canadian supreme court over 25 years, and it is likely that our own supreme court will gradually develop into more of a constitutional court. This in turn will generate greater interest in the identities of the senior judges and in the method by which they were appointed. The potential for continuing conflict with parliament is thus considerable.

I hope this is helpful.

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