Since the act was passed in October 2000, prisoners gained rights to vote in general elections. The Home Secretary can now decide or to set a mandatory sentence, before judges used to decide this given a minimum and maximum number of years. Hanging people goes against the Human Rights.
The judiciary already had great range of political power. It can undertake judicial reviews which allow them to reverse official decision by saying that they were against natural justice, or that a minister exceeded his power. This happened a number of times to Michael Howard over prison procedures.
The question of whether the judiciary protects our rights effectively it is mixed one. In some ways it does extremely well, but there are also weaknesses. Since the passage of the Human Rights Act, the judiciary has been given many more power to protect rights. We now have guarantees of rights such as freedom of expression, freedom of movement, privacy and family life. If any public body threatens these rights, we may ask for a judicial review and the judges can order a change. This did not happen before 1999.
There are also cases which can be reviewed if we think that local authority or minister has overstepped powers in such a way that our rights are in danger. Here the judges can order that a reversed. Michael Howard was forced to change 17 decisions when he was Home Secretary. This shows how judges can actually overrule a government minister.
We must not forget that parliament is sovereign. This means that if it passes a statute which is against the Human Rights Act, there is nothing the courts can do about it. This is because parliament is superior to the Human Rights Act. This is a very great weakness for the judiciary.
The process of appealing on a right issue will be cheaper and quicker then the use of the European Court of Human Rights, that the parliament may enforce the act against the government. But parliament could also appeal the act in the future so it does not bound forever.
The Human Rights Act is huge step forward in protecting rights, as great as the extension of the franchise in 1932. Furthermore, cases will be dealt with more quickly than with the European convention on Human Rights. It is bound to be cheaper because citizens will not have to go aboard to obtain justice. Most of the rights contained in the convention already exist in UK statutes or in common law so perhaps the act is not such a big step forward.
But it will make a difference in dealing with the range of rights such as:
- The right to life
- The right to family life
- Freedom of movement, associated and expression
- Freedom from discrimination on race or religions
- The right to privacy
- The right to a fair trail
- The right to be treated equally.
All these matters can now be protected in British courts. It is also true the political bodies must protect the rights or risk having to charge a decision or pay compensation. Parliament will legally stay sovereign. A determined-enough government, which feels that it has a mandate to set aside one of the rights contained in the convention, can do this if it can persuade parliament to back it. In such circumstances, there is nothing that the Judiciary can do about except to draw public attentions to the facts. There is basically going to be a balance of power between parliamentary sovereignty and the law. This is exactly what Professor Peele said that not only will there be a balance of power between the judiciary and Parliament but also the Act will put checks on parliament – “the human rights act is a dynamic piece of legislation with the potential to alter the balance between the government and the governed in a political system where hitherto there have been a few checks on the power of the state”.
The French philosopher Montesquieu introduced the area of the separation of power as an important part of representative government. What he meant was that government had to be divided into different branches are the executive, the legislature and the judiciary. The judiciary in Britain has to be separated and independence because there is so much power in the hands of the executive branch. What independence means is that the government cannot interfere with the decisions the judiciary makes. Sometimes the judiciary has to make decisions of political importance, such as cases involving the power of ministers or rights of the people, for example against the police. If the government was able to control the judiciary, the people would lose their protection and this would be a serious development.
Judges are not elected and not very representative, so there is a serious case as to whether they should be allowed to make such decision. This is undemocratic and doesn’t contribute to Britain’s representative democracy. Political issues should be left to elected politician, who are accountable. These kinds of cases would hit the deadlines and judges would suddenly become the major figure.
It may be possible for parliament to defy the act, but only if the judges allow them to do this. So the sovereignty of parliament is affected by the act, but this does not mean that the situation will change. We might also have the situation where parliament wants to break the term of the act and the judiciary will have to decide whether this is permissible. If the parliament wanted to give more power to the police to search people or question them the court would have to decide.
The main way in which the judges protect rights is as follows: when there is a statute which deals with the rights of citizens (such as the Human Rights Act or the Criminal Justice Act), there may be some cases which appeal concerning the status. In such cases, the judges will have to over take the review of the status. When they make a judgement, the government has to follow the decision. Examples of these cases are when prisoners have been denied their rights-maybe to speak to a solicitor or to apply for parole-look at the laws about how they should be treated. The newspaper might also appeal, were the government to try and prevent it publishing story. This might be a case under the Human Rights Act or even under unwritten common law.
The independence of the judiciary is maintained in two ways. Firstly, judges cannot be removed except for misconduct. In other words, they cannot be threatened with losing their post if they do not produce verdicts which please the government. With citizens, for example, are challenging the government for their rights, as in the government Headquarters (GCHQ) union’s case against Margaret Thatcher, it is important that the decision of the judges is a neutral one. Secondly, parliaments and ministers are not allowed to interfere directly in cases. In other words, they are not allowed to put any pressure on judges while the case is going on. The Lord Chancellor and the prime minister appoint the judges. Both are the members of the government to there is a possibility that they are not really independent. If party politicians choose judges, it cannot be said that they are independent. This happens in the US and we can see the Supreme Court is defiantly not independent. This is related to the case of the Florida election.
So the potential problems with the Human Rights Act (HRA) are that it undermines the effective law enforcement and government. The judiciary will rise in the centre of politics considering that they are unelected bodies. So judges will become more important as agents of social and political change. There may also be a danger of overload of the courts. The government has not embraced the need for a HR commission to give advice to people. As a result of the HRA, in future, parliament will be under pressure to bow to the decisions of the courts so more power will be transferred to the law lords, it can be argued, that this is why Blair wants to get rid of the Lord Chancellor and that’s why he went against his manifesto because in it he said that he would make the second chamber accountable by making it elected but then he changed his mind and wanted to appoint them.
In conclusion, the overall picture is mixed. Judges do have great powers, especially under the Human Rights Act, but they cannot overrule parliament and many of our rights remain rather vague. The judiciary cannot enforce rights against the will of a determined parliament.
The independences of the judiciary mean that the political cannot interfere with judges. This means that the judges will take a neutral position in cases about the relations between the people and the government. Judges also must not be members of a political party or express political views. They should not just be independent; they must be seen to be independent.
The importance of the act is that it might prevent government from abusing our rights. Ministers and civil servants will have to be careful in case a decision or a proposed law offends the act. This way the cause of human rights will be much advanced in Britain. We don’t have a bill of rights like the US or France but we do have a set of rights – we need protection from the government minds (e.g. Blair went to war when the electorate was against it).
