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“THE JUDGES HAVE TOO MUCH POWER UNDER THE HUMAN RIGHTS ACT 1998 TO REVIEW THE EXECUTIVE. DISCUSS, IN THE LIGHT OF DECIDED CASES” Free essay! Download now

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“THE JUDGES HAVE TOO MUCH POWER UNDER THE HUMAN RIGHTS ACT 1998 TO REVIEW THE EXECUTIVE. DISCUSS, IN THE LIGHT OF DECIDED CASES”

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There is a heightened sense of indignation emanating from some quarters of the judiciary. In particular, from those judicial members who have become the protectorates of the individual liberties and freedoms which have become the mainstay of the Human Rights Act 1998 [HRA]. This sense of exasperation, which is encapsulated quite forthrightly by Lord Justice Brooke within the opening quote, serves not to intensify the pre-existing tensions between the judiciary and the executive with respect to the new paradigm of human rights based review, but quite justifiably, illuminates the ever present difficulties faced by those whom govern and legislate vis a vis those to whom the task is engendered to carry out the will and intention of Parliament....

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There is a heightened sense of indignation emanating from some quarters of the judiciary. In particular, from those judicial members who have become the protectorates of the individual liberties and freedoms which have become the mainstay of the Human Rights Act 1998 [HRA]. This sense of exasperation, which is encapsulated quite forthrightly by Lord Justice Brooke within the opening quote, serves not to intensify the pre-existing tensions between the judiciary and the executive with respect to the new paradigm of human rights based review, but quite justifiably, illuminates the ever present difficulties faced by those whom govern and legislate vis a vis those to whom the task is engendered to carry out the will and intention of Parliament.

It is, short-sighted, however, to presume that the alluded to tensions are solely the preserve and consequence of what has now become a semi-entrenched Constitutional Act [semi-entrenched because there have been recent mutterings from the Executive with respect to amending parts of the HRA, and a call from the opposition Conservative Party to “scrap, reform or replace the Act”2 with a seemingly more robust Bill of Rights which, they propose, would not hinder the fight against crime and terrorism]. Administrative lawyers have long been more concerned with the “constitutional justifiability of their discipline than with the substantive content of the principles which it prescribes”3, yet, this form of protectionism is unsurprising given the fine line which the judiciary must walk between the preservation of the rule of law; ensuring the sustainability of Parliamentary sovereignty and making certain that such legislative construction does not exceed the bounds of creativity into a unilateral judicial development of the law [which, it may be argued, is the preserve of the legislature alone].

Whilst the advent of the HRA has drawn a more conflicted audience with respect to the perceived imbalance of rights, which are seen as being ascribed to those considered


1 Ford, Richard and Fresco, Adam, “ Victory for Afghan hijackers fighting to remain in Britain” -
Times Online article,(August 4, 2006) - http://www.timesonline.co.uk/printFriendly/0,,1-2-2299858-2,00.html
2 Woodward, Will, “Cameron promises UK Bill of Rights to replace Human Rights Act” - Guardian Online article (June 26, 2006), http://politics.guardian.co.uk/print/0,,329513807-107980,00.html
3 Elliott, Mark, The Constitutional Foundations of Judicial Review (Hart Publishing, 2004), p.3.
less deserving of them, is it yet judicious to suggest that its enactment has contributed to the usurpation of the powers and responsibilities of the Executive? Furthermore would the repeal of a statue embodying fundamental rights necessarily provide a more advantageous position for those seeking to affect the balance in a manner which would “protect the public”4 rather than elevate the status of those whose rights [it has been intimated] should be marginalised e.g. terror suspects and those convicted of serious sexual offences?

The more substantive form of judicial review which is manifest within human rights review does not exist within a constitutional vacuum, but is rather an extension and refinement of more traditional form of the ultra vires doctrine which was the original and more common expression of the judiciaries’ capacity to review the legality of the executives’ decision-making process. In the chapter “Justifying Judicial Review”5, Elliott, provides an overview of the “interventionist trend” of the government, which has seen the legislatures’ ability to hold the executive to account diminish exponentially. Yet the capacity of the judiciary to “…secure a commanding position… [to]… direct withering fire on executive and local government” 6 and, thereby, “…avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers” 7 is really not a novel development. Judicial review may be regarded as the overarching expression of the rule of law [the most notable exposition laid down by Dicey8] which sees no distinction between those that make and enforce the law being bound by those same laws themselves.

The latter point may seem to have little relevance to the issue of the perceived expansionist tendencies of the judiciary within their human rights jurisdiction, yet the discussion has to be placed within the context of the separation of powers and the rule of law. In Liversidge v Anderson9, Lord Atkin expressed the view that the separation of powers and the ability of the judiciary to call the executive to account provided the necessary bulwark against governmental influence. Were this not the case then the judiciary would “become more executive minded than the executive”10. The preservation of this clear demarcation has, therefore, become an ever present consideration for the higher echelons of the judiciary
who wish to vouchsafe the integrity of their roles, whilst ensuring on the face of it that



4 per Lord Falconer reported in BBC News – “Common Sense Vow on Human Rights” (25 July 2006), http://news.bbc.co.uk/1/hi/uk_politics/5212222.stm
5 Elliott, Mark, op. cit. p.1-2.
6 Richardson, G and Genn, H [per Sedley], Governments, Constitutions and Judges, (Oxford: Clarendon Press), 1994 at 37-38.
7 per Lord Mustill in R v Secretary of State for the Home Dept, ex parte Fire Brigades Union [1995] 2 AC 513 at 567, [Elliott, Mark, , op. cit p.2]
8 A.V. Dicey, The Law of the Constitution, 1885
9 [1942] AC 206, Parpworth, Neil, Constitutional and Administrative Law, Butterworth Core Text
Series (Lexis Nexus UK ) - 3rd edition, (2004), p.260.
10 Id.
Parliamentary supremacy is preserved. The traditional Ultra Vires doctrine had provided few practical difficulties in ensuring that the latter dicta, in particular, had become enshrined within constitutional consciousness. Simply put, this orthodox premise sought centrally, though not exclusively, to apply the law of Parliament by ensuring that public bodies did not overreach the parameters of their decision-making abilities.
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