Administrative Law, Irrationality in English Law

Alternatively some argue that the executive has too much power which threatens individual rights. Therefore some suggest that a codified constitution would help to safeguard citizen’s rights because at the moment Britain has adopted the European Convention on Human Rights by passing the Human Rights Act 1998, which is considered weak as it could be overridden by Parliament due to Parliamentary sovereignty. Furthermore the European Convention on Human rights is part of UK law however its terms are not determined in the UK, whereas a codified constitution would include a statement of rights in the UK which would be controlled domestically.

A different and more modern set of values which are now applied by judges throughout the English legal system are human rights set out in the ECvHR. Since the 1950s, UK citizens have been able to pursue an action in the European Court of Human Rights, and since October 2010 have been able to raise the same issues in a UK court.

Both statutory interpretation and the Human Rights Act are a doctrine of precedent by which law is changed and justice is served. The doctrine of precedent is an essential principle of English legal system, which is a form of reasoning, interpreting and decision making formed by case law. It suggests that precedents not only have persuasive authority but must also be shadowed when similar situations arise. Any rule or principle declared by a higher court must be followed in future cases. In short the courts and tribunals are bound within prearranged restrictions by prior decisions of other superior courts. All the judges are also obliged to follow the set-up precedents established by prior decisions which is called Stare decisis. Making decisions according to precedent helps achieve two objectives. Initially it aids to maintain a system of stable laws which gives predictability to the law and affords a degree of safety for individual rights. Moreover, it ensures that the law progresses only in accordance with the developing perceptions of the community. Therefore, it more accurately mirrors the morals and prospects of the community that we live in.

The human’s rights act is very useful within the UK because it lays down the law about what rights we have. It

The legitimacy of the ECJ to uphold EU legislation is a necessary component of effective human rights policy. The history of its increase in power is worth noting. Throughout the 1960s and 1970s, the ECJ’s location in Luxembourg, far from the political fray in Brussels and Strasburg, prevented it from becoming a strong body of the EU. Yet, throughout that time the court methodically built case-law that would lead to its surge in influence in the 1980s. The two most significant developments of the court during this time period were direct effect and supremacy. These twin pillars clarified the relationship between the national and EU legal orders.

Australia is now the only Western democracy without a bill of rights. Its law-makers have consistently declined to introduce a bill of rights, either legislative or constitutional. Recently, in 2009, the Australian Government commissioned the most extensive consultation on human rights issues in Australia’s history – and then flatly rejected the consultation committee’s recommendation that a Human Rights Act be introduced. To observers in Europe – where courtesy of the European Convention on Human Rights (ECHR), human rights are woven deeply into the fabric of governance- Australia’s position may be surprising, even perplexing. Why is Australia so isolated from the global trend towards introducing human rights-specific legislation? – David Kinley & Christine Ernst

“The impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion;”

The reform of the Human Rights Act can illustrate that the constitutional reform did not go far enough. In 1998, the Blair government announced that the citizens ' rights would be safeguarded and strengthened through incorporating the European Convention on Human Rights into UK law. However, this created a problem as the UK now has two sets of rights – those built up under Common Law and those in the Human Rights Act. These two sets of rights may conflict and, in addition, cases can be taken using these rights to both the UK Supreme Court and the European Court of Human Rights (which is the supreme court for the European Convention on Human Rights). The UK judiciary is divided on how to resolve this issue.

xiii) Influence of EU ensures that altering UK constitution is hard – cannot be incompatible

The power to strike down Acts of Parliament is defined as the power to declare legislation invalid because it is unconstitutional. This paper will critically assess sections 3 and 4 of the HRA 1998 by defining them, reviewing case law surrounding their use, and by evaluating the powers that they give to the judiciary. By doing so, it will demonstrate that section 3 gives judges powers that are not significantly different from the power to strike down Acts of Parliament, whereas section 4 does not.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

The Human Rights Act (1998) consists of sixteen fundamental rights that everybody is entitled to from birth or since the act was put into place. These sixteen rights are set out as ‘Articles’ and along with these Articles there are also ‘Protocols’ to extend and adapt new rights into the Human Rights Act. There are three main effects of the HRA: Firstly, it has subsumed the rights set out by the European Convention on Human Rights (ECHR) into British national law; if in any given situation there is a breach of rights, this allows people to take their cases to British courts instead of seeking justice from the European Court of

Illogical distinctions. The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ resulting in some areas of the law becoming very complex. From 1898 to 1966 the House of Lords was completely bound by its own past decisions unless the decision had been made per incuriam, that is, in

Following the signing of the ECHR, the United Kingdom introduced the Human Rights Act 1998 (HRA 1998). Under s6(3)(a) HRA 1998, the courts are now considered a public body, therefore no decisions they make can affect the guaranteed rights of any individual under ECHR. The introduction of this legislation has resulted in individuals bringing claims for Human Rights breaches where negligence claims have

Administrative Law (dealing with regulations) ‘is essentially judge made law’ and its outcomes are neither predictable nor its case law concise. Therefore while public law offers substantial protections against ‘arbitrary power’ of government it is not easily accessible to all. The courts have no power to strike down legislation (parliamentary law is supreme ) yet their power to strike down regulations is still only limited to acts ultra vires. The judiciary is an effective check on executive power (See Fitzgerald v Muldoon 1976) but its checks on the Legislature are lacking; ‘notorious’ parliamentary privilege show that the courts wish ‘not to adjudicate matters determined within the walls of the