The Lord Chancellors department's role is said to secure the Administration of Justice in England and Wales, but how can this be so if the Lord Chancellor is in effect a tri-partite politician.
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Public Law Assessed Coursework Word Count: 1, 499 The Lord Chancellors department's role is said to secure the Administration of Justice in England and Wales, but how can this be so if the Lord Chancellor is in effect a tri-partite politician. Is he influenced by Government policy when he sits as judge in the appellate courts? It can be seen that the Human Rights Act 1998 has modified our constitution, earlier examples of this was the passing of the European Communities Act 1972 which effectively gave up our sovereignty, however the courts have tried to maintain our constitution and sovereignty by interpreting acts of Parliament1. The court system did continue to do this quite effectively until the late 1980's when along came Factortame litigation2 and more so with Human Rights now a part of English law. Before 1972, if an Act of Parliament had a clause in it saying that it can not be repealed, yet the same power that made it, Parliament can repeal it3. The concept in Cheney v Conn4 has now changed together with the change in our constitution, which has brought in European Law and so created a hierarchy of law, including Human Rights. The European Communities Act 1972 effectively disposed of sovereignty, stating that "any enactment passed or to be passed...shall be construed and have effect subject to the foregoing provisions of this section"...(i.e. EC law)5. This effectively bound any future Parliaments for as long as we where part of Europe. The longer we are part of Europe effectively the harder it is to withdraw from it. The same effect has happened with the introduction of the Human Rights Act 1998. So how far have our laws become entrenched? Some would argue that some of our laws have become entrenched by consequential actions of previous acts of Parliaments, examples being European Communities Act 1972, Human Rights Act 1998. We can see due to our laws being entrenched, this will, in my opinion change our constitution and human rights.
Dicey also formulated principles, in which he said there should be: a) Equality before the law - no one should be above the law and the condemnation of special courts for officials. b) Protection of constitutional rights - Dicey warns against putting all "eggs in one basket". Although the UK was a signatory to the European Convention of Human Rights, it had not been given statutory effect until October 2000. Before October 2000 the status of the convention was only to be used as an aid in the English courts in the case ex parte Bibi10. Indeed the convention was used for this purpose, as an aid to interpretation, it did not allow the courts to ignore a statutory provision that was contrary to convention rights and it was used in the development of the common law. It was up to Parliament to legislate in order to make the convention part of our law11. Governments must act in accordance with law, but are these laws just and do they provide adequate protection for ordinary citizens? Maybe yes, with the introduction of Human Rights and the subsequent decisions in McGonnell, Stafford and Anderson. It would seem that there was a conflict between the rule of law and Parliamentary supremacy, a breach in the rule of law only normally carrying disapproval. Lord Steyn added in Stafford "that detaining a life prisoner by exercise of an administrative discretion was hard to reconcile with ordinary concepts of the rule of law". How is the convention to be given direct effect to in UK law? It doesn't incorporate the convention directly, therefore Parliament supremacy is maintained. Parliament can still choose to legislate contrary to the convention and our courts can't invalidate legislation because it's contrary to the convention. There are several ways in which the courts can tackle this: * Changes made through statutory interpretation * Declarations of incompatibility by the courts * Fast track procedure for amending law (delegated legislation)
who sought judicial review of the procedure used, seeking declarations that the Home Secretary was required to adopt a judicial view and that for the right to be told of any information on which the Home Secretary would make his decision. This may well be different in the light of recent developments. If the Lord Chancellor sits as a judge and is a member of the Government, then the Government is in breach of article 6 of the convention. We only have to look at the case of McGonnell v UK20 which inhibited a bailiff sitting in a legislative capacity could not deal in the same matter in a judicial capacity. It also throws open the issue of judicial immunity, which under the Act of Settlement 170021 prohibits judges being liable in civil actions22. It would seem the Human Rights Act would make the judiciary liable if the convention has been breached. Lord Steyn added in Stafford- "In fixing a tariff the Home Secretary is carrying out, contrary to the constitutional principle of the separation of powers between the executive and the judiciary, a classic judicial function. Parliament entrusted the underlying statutory power, which entailed discretion to adopt a policy and fix a tariff, to the Home Secretary. But the power to fix a tariff is nevertheless equivalent to a judge's sentencing power."23 We have seen that the ECHR has said the setting of tariffs must be judicial one not a political choice in Stafford and the case of Anderson declaring legislation incompatible with human rights law. The role of Lord Chancellor is in doubt because he is not independent of the executive. "The complete functional separation of the judiciary from the executive was fundamental since the rule of law depended on it"24. Indeed Lord Irvine, whilst shadow chancellor said judicial review promoted the rule of law25, therefore I can only see the Human Rights Act coming more into line with the rule of law and making the doctrine very separate of its functions.
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