The Human Rights Act 1998 places the courts in effective control of the British constitution. It could now be described as a 'legal' rather than a 'political' constitution"

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"The Human Rights Act 1998 places the courts in effective control of the British constitution. It could now be described as a 'legal' rather than a 'political' constitution"

Discuss, using recent caselaw to illustrate your answer.

Since the incorporation of the Human Rights Act into UK law, there has been much controversy as to whether the courts have too much input in parliamentary matters. There is also the question of whether the judiciary should not be allowed to exercise this influence since they are not an elected body like the government. This essay will examine the extent to which the courts “control” the constitution, and whether they have removed power from parliament meaning that it is now more legally based.

The Human Rights Act 1998 gives greater effect to the Convention Rights which the UK signed in 1953. The vertical aspect of the act means that UK courts can now deal with disputes between the public and the state, instead of having to refer the case to the European Court of Human Rights. The courts have not always had such of influence in parliamentary matters however. The Brind 1991 case illustrates how the Secretary of State was not obliged to take notice of Article 10 of the convention, as it had not officially become part domestic law. Lord Woolf said, in discussion of the effect of making the Convention part of domestic law, “It is already obvious that the result will be…significant changes, to our constitutional arrangements. As Woolf suggests, allowing the courts to comment upon legislation means that they have at least some degree of influence. It is important to point out that Britain does not have a codified constitution as many other countries do, and it is instead comprised of statute, convention and case law. This means the constitution is more flexible and fluid than other countries which have a stricter “Bill of Rights”.  Lord Lester and Lydia Clapinska, in Human Rights and the British Constitution, note that “political (if not legal) sovereignty was henceforth to be shared with the European institutions created by the convention”  This control is not legal however, as the courts do not possess the authority to force the Government to change or abolish legislation. Ministers must, before new legislation is enacted, either state that it is compatible with the convention, or incompatible. The courts are then at liberty to issue a declaration of incompatibility, which puts pressure on the Government to re-examine the issue. It is however then a matter for parliament to decide whether to continue with the legislation against the court’s ruling. So far however, the Government has responded to every declaration of incompatibility by amending legislation, this perhaps showing the degree of influence that the courts actually have.

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When the Human Rights Act was first included in 1998, the Home Secretary Jack Straw said, “We want the courts to…only in the last resort conclude that the legislation is incompatible with them [convention rights]” . Straw’s comment shows that he did not expect declarations of incompatibility to be a common occurrence, and that courts would strive to read legislation in a way that is compatible with convention rights. However more recently, an increasing number of cases have shown that the judiciary are not afraid to issue such declarations, and that judges have become more vocal if they believe ...

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