Children and Families Act 2014

I am very humbled to announce that my original article on this topic has now had to be removed as it has been published by The Lawyer magazine.
Please follow this linkhttp://ml2b.thelawyer.com/3027417.article?mobilesite=enabled
Thank you so much to each one of you 1800 readers I could not have done this without you.

Kelly Thornton

Transatlantic Trade deal: A global union or a constitutional nightmare?

The Transatlantic trade deal: what is it?

The purpose of the Transatlantic Trade and Investment Partnership (TTIP) is a deal which will enable the US and EU to remove their regulatory differences. Prima facie, this seems like a great idea and a good way to create a more global and free market however with the shock statement from Lord Livingstone yesterday saying that this deal will include the NHS it seems the deal will do more damage than good.

For more information on what the TTIP is please see:  http://www.independent.co.uk/voices/comment/what-is-ttip-and-six-reasons-why-the-answer-should-scare-you-9779688.html

Image source: http://www.nwoo.org/2014/06/21/us-velvyslanectvi-v-nemecku-da-20-000-usd-na-ttip-propagandu/

The issue

The problem with the TTIP is it will provide businesses with the power to sue governments whom defending their citizens.  Many legal theorists and lawyers take issue with the TTIP because It would allow a secretive panel of corporate lawyers to overrule the will of parliament and destroy our legal protections. This goes against the key principle of the UK's constitution: Parliamentary Sovereignty.

The mechanism through  all this will happen is known as investor-state dispute settlement. The shocking news is that this settlement is already being used in many parts of the world to destroy regulations protecting people and the planet. Investor-state dispute rules found in in trade treaties allow companies to sue the countries that signed the treaties. Worryingly the rules are enforced by panels which are not safe-guarded, the hearings are  secret and the judges are corporate lawyers, many of whom work for companies of the kind whose cases they hear. This is all gobsmackingly unconstitutional and the defenders of fair trials and human rights are up in arms about it. Secret hearings limit the public's right to see current cases published and this risks clouding the Rule of Law and creating a less transparent and unjust legal system here in the UK. The idea that some of the judges may be biased means that the defendants will never be guaranteed a fair trial, a human right under the HRA 1998 s 6. Worst still is the fact that this entire system is not subject to appeal as citizens and communities affected by their decisions have no locus standi.

For more information surrounding the debate about the Investor- state dispute settlement please see this great opinion piece in the Washington Post http://www.washingtonpost.com/opinions/debating-the-investor-state-dispute-settlement/2014/10/05/2c2477ec-4b15-11e4-a4bf-794ab74e90f0_story.html

The NHS

The big worry surrounding the TTIP is that it could lead to the NHS being bought by a big commercial player and there is nothing that we can do to prevent this.  It will give big business vast new powers over public services which could see our human rights breached and environmental protection rules disregarded. 

For a more detailed analysis of the threat to the NHS please see: http://www.theguardian.com/business/2014/sep/07/trade-unions-trade-deal-threat-to-nhs

Conclusion 

The conservatives have been  made aware of the opposition to the TTIP and suggest that it will benefit the UK by £10bn but statistics also show that 1m jobs will be lost in the EU. The conservatives are trying to kill off the opposition by insisting that those opposing the TTIP  are simply anti-american and that this is too good an opportunity to miss as it could mean we sell our NHS services to the US. However, this is only one side of the picture on the other thousands if not millions of jobs will be lost, big public authorities could be nationalised and our constitution faces a future in tatters. There is huge outcry for a referendum on this issue. However, despite the TTIP being a constitutional nightmare it is unlike to result in a referendum come as it seems Mr Cameron has made up his mind.

Recklessness and Intention- a criminal law conundrum

The value of intention and recklessness in English Criminal Law

Intention and recklessness are both vital in English criminal law. It is a defendant’s intention which is crucial when courts decide if they had a guilty mind and subsequently whether they should be punished. Recklessness is vital when deciding the facts of a case and whether the defendant should be punished for not adequately assessing the risks of the criminal act they are charged with. Intention and recklessness can both provide the mens rea element of crime which allows a defendant to be convicted of a crime. In reality, this means that recklessness and intention carry different punishments but both can be used to ensure that the English criminal law is effective in punishing people who do not consider risks or intend to commit a crime. This article is going to examine what is meant by intention and recklessness, the ways in which they are similar and different and the reasons why there has been uncertainty surrounding their definitions.

Image source: http://lawatleeds.weebly.com/mens-rea.html

Intention

Firstly intention, intention is critical when a court decides whether or not a defendant should be convicted a crime. In order to define intention we must break it down into two forms: direct and indirect intention. Direct intention is the aim of the defendant. This is essentially, whether the defendant would consider his action a failure if a desired consequence did not occur as a result of his action. A case which helps define direct intention is R v  Mohan[1], in this case Mohan was asked to slow down policeman, he did, but when he got near the policeman he accelerated  towards the policeman who had to jump out of the way to avoid being knocked over. Mohan was convicted of dangerous driving after it was judged that by accelerating the car towards the policeman he had direct intention to kill or seriously harm the policeman. This is summarised in the appeal judgement of James LJ where he states that the appeal has failed because:

‘The charge is an attempt to cause bodily harm by wanton driving. It has to be shown to you that the appellant deliberately, without justification, irresponsibly, drove his vehicle in such a manner as was likely to cause some bodily harm.’

Indirect intention is found when the defendant may intend a consequence although that consequence is not their objective if it is foreseen. A case that helps define indirect intention is R v Woollin[2]. In this case Woollin threw his baby across the room in a fit of rage. He argued that he was aiming for the pram and had no intention of killing or harming his baby. The baby missed the pram and hit a hard surface which fractured his skull and later died as a result of his injuries. At first instances and at appeal Woollin was convicted of murder. His conviction was quashed by the House of Lords where his murder conviction was substituted for manslaughter on the grounds that he did not have direct intention to kill his baby and that his intention was indirect. The House of Lords used Lord Lane LJ’s judgement from R v Nedrick[3] to justify convicting Woollin of manslaughter. Lord Lane LJ stated that a defendant can only have direct intention when:

‘The defendant recognised that death or serious injury would be virtually certain, barring some unforeseen intervention, to result from his voluntary act’

Wollin realised that there was a risk of serious injury to his baby but he did not believe this risk to be virtually certain and so he was not convicted of murder.

Recklessness

There are two forms of recklessness: subjective and objective. Subjective recklessness is defined in R v Cunningham[4]. In this case Cunningham ripped a gas meter off of a wall, the gas then leaked out and poisoned the victim. It was judged that Cunningham had malice because ripping the gas meter off the wall was reckless.  Cunningham was convicted at first instance but his appeal was accepted because he did not believe that the victim would be harmed. In this case the defendant is aware of the risk and acts recklessly and so he is said to be subjectively reckless. Objective recklessness occurs when it does not need to be proved that the defendant was aware of the risk, if the risk is was obvious one. A person is objectively reckless when they create a risk without giving thought to it.  Objective recklessness differs from subjective recklessness because the defendant does not have to be aware of the risk, they need only take a risk that a reasonable person would have foreseen. A leading case that helps define objective recklessness is R V Caldwell[5]. This case creates the model direction for objective recklessness as it was judged that a person is reckless for the purpose of criminal damage if he does an act which creates an obvious risk that property will be destroyed or damaged and when he does that act he either has not given any thought to the possibility of there being such risk or has recognised that there was such risk and has nonetheless gone on to take it. Caldwell has since been overruled by the judgement in R v Gemmel[6] where the defendants aged 11 and 12, lit some newspapers which set fire to a wheelie-bin which set fire to a shop, causing  £1,000,000 of damage. On appeal they were found not guilty of arson as the jury believed that Caldwell was wrongly decided. The Criminal Damage Act 1971 states that a person is guilty of an offence when they are:

‘(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged.’[7]

Intention and recklessness are similar in some respects[8]. Firstly they both form part of the mens rea of crimes.  For example in a murder trial intention to kill must be proven in order for the defendant to have had the necessary mens rea to be convicted of homicide[9]. Likewise it must be proven that the defendant was driving recklessly in order for him to have the necessary mens rea to be convicted of causing death by careless or inconsiderate driving[10]. Both intention and recklessness are metal states that the defendant might experience when he is performing the actus reus of a crime. Also they both have clear links to risk. Intention involves the conscious taking of a risk in order to achieve an aim and recklessness involves taking an unjustifiable risk either consciously (subjective recklessness) or unconsciously (objective recklessness).

Differences between recklessness and intention

There are differences between intention and recklessness. It could be argued that intention is more thought out than recklessness[11]. When a defendant has intention to commit a crime they are taking a risk in order to achieve an aim. They have voluntarily chosen to take this risk and are taking it as method of achieving their intention. Whereas recklessness is seen to be more careless, when a defendant is reckless they may be aware of the risk they are taking but they are not taking the risk in order to achieve anything. Culpability is also a major difference between intention and recklessness. It is widely believed that defendants with an intention to commit a crime deserve punishment because their mental state is guilty. However when it comes to objective recklessness there appears to no culpability because the defendant was not even aware of the risk that was being taken.  The final difference between intention and recklessness is the link they have to a reasonable person. Intention can be considered outside of what is reasonable. A defendant can intend to commit a crime both rationally (for example calmly calculating how to kill someone) and irrationally (shooting someone in a fit of rage but still intending to kill them) either way this intention is part of a guilty mental state. Unlike intention, recklessness must be considered in relation to a rational person. Subjective recklessness is still irrational even though the defendant was aware of the risk, what makes it reckless is that a reasonable person would not have chosen to do it. Objective recklessness is always judged in relation to a rational person and cannot exist if it is not considered in relation to a rational person.

The uncertainty surrounding recklessness and intention

Many uncertainties surround the definitions of intention and recklessness. This is mainly because three questions arise: should being reckless be punished? Should it matter if the defendant considered risk? Should we measure a defendant’s taking of a risk against a reasonable person?  Firstly it is uncertain whether recklessness should be punished. In order to decide we need to look at the function of punishment in the criminal law. If punishment is a means of deterring future offenders,[12]recklessness should be punished so that in future people take time to consider risks. If punishment is part of a paternalistic criminal law system,[13] subjective recklessness should be punished as it could stop citizens taking unjustifiable risks which could harm themselves and others but objective recklessness should not be punished because it seems unjust for someone to be punished for taking a risk they were unaware of. Or perhaps the criminal law is there to protect society therefore all recklessness should be punished in order to prevent harm to society. Secondly when deciding whether it should matter if the defendant considered risk we must consider the effects on society. If it doesn’t matter society could suffer because people could take risks knowing they cannot be punished. However if it does matter, there are many implications for legislation. For example: how do we know what risks should be considered? Are some risks too unlikely to need consideration? Should defendants consider all risk no matter how small? Thirdly it can be argued that we should measure a defendant’s taking of a risk against a reasonable person because this is a good way of judging what is acceptable and it helps us to predict outcomes based on what a reasonable person would do. However it could also be argued that everyone is different and so we should not be compared to a set reasonable standard as it takes away our individualism and in reality we are not all the same.

To conclude, intention and recklessness are both crucial parts of the mens rea of crimes. They are similar because they are both mental elements in crime and link to risk. They differ because intention is about the defendant’s aim whereas recklessness is about the careless taking of risk. There are many uncertainties surrounding the definitions of intention and recklessness because it is not clear why recklessness is punished or why it should matter that the defendant considered risk and there are issues with comparing each defendant to a set ‘reasonable man’. In order to clarify the definitions of intention and recklessness we need to look at the function of the criminal law, the effect different definitions have on society and the way in which the definitions could change how risk taking is viewed by society.

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[1] R v Mohan [1975] 2 All ER 193, CA

[2] R v Wollin [1998] 3 WLR 382

[3] R v Nedrick [1986] 3All ER 1

[4] R v Cunningham [1957] 2 QB 396

[5] R V Caldwell [1982] AC 341

[6] R v Gemmel [2003] UKHL 50

[7] Criminal Damages Act 1971 s1

[8] Lucy William, ‘controversy in the criminal law’ (2006) http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1988.tb00646.x/full accessed 15/11/12 02:35

[9] Homicide Act 1957

[10] Road Traffic Act 1988 s2B

[11] Andrew Halpin ‘Definitions and directions: recklessness unheeded’ (2006)  http://onlinelibrary.wiley.com/doi/10.1111/j.1748-121X.1998.tb00019.x/abstract accessed 15/11/12 23:30

[12]  Paul H Robson and John M Darley ‘Does Criminal law deter? A behavioural science investigation’ (Oxford journal of legal studies volume 24 no 2, 2004, p 173-205) http://webscript.princeton.edu/~psych/psychology/research/darley/pdfs/Does%20Criminal%20Law%20Deter.pdf accessed 10/11/12 15:00

[13] Richard Tur ‘ Paternalism and the criminal law’ (2008) http://onlinelibrary.wiley.com/doi/10.1111/j.1468-5930.1985.tb00031.x/abstract accessed 12/11/12 at 12:05

Contract Formation: more than just consensus between parties?

Contracts and consensus 

Every day we form contracts, sometimes these are obvious such buying a property but sometimes the contracts we enter into are barely noticeable for example buying a newspaper. Establishing consensus between the parties is a major part of contract formation however this article is going to examine how contract formation is more than just mere consensus between parties. Consideration, intention to create legal relations, communication of the offer and certainty of terms are all key factors in contract formation. Contracts are not just about establishing consensus between parties they also establish legal relations and dependence between the parties.

It is important to note exactly what is meant by ‘consensus between the parties’. A consensus between parties is made up of an offer and an acceptance. These are essential when creating a legally binding contract and help courts to identify exactly when a contract was formed and consensus was reached between the contracting parties. An offer is ‘a statement by one party to enter into a contract on certain terms which he has put forward’[1] It must be knowingly and unconditionally accepted in order for a contract to be formed. A key case on this point is Gibson V Manchester City council.[2] In this case it was judged that a contract was not actually formed because an offer was never made. Gibson received a letter from the council saying that they ‘may be willing’ to let him buy his council house. The court judged that this was not an offer but actually a supply of information and so Gibson could not buy his council house because consensus between the parties in the form of an offer and acceptance had never actually occurred. In order for an offer and an acceptance to establish consensus between the parties the acceptance must show that the offeree agrees to all of the important terms of the offer. When consensus between the parties is reached the ‘two minds must have come together’[3] meaning that the promisor and the promisee must agree on all of the important terms of the contract.

Image Source: http://www.translegal.com/wp-content/uploads/contract-formation.jpg

Contract Formation- Consideration

Next we shall consider other factors which play an important role in contract formation. The first of which is consideration. Consideration was defined by Justice Lush as: ‘ some right, interest profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.’[4]  In reality this means that the parties become reliant upon each other because they act to their detriment and the other party’s benefit on the reliance of the promise. Consideration does help to establish consensus between the parties but it also establishes dependence between the parties, another key piece of evidence to suggest a contract has been formed. Consideration is deemed good so long as it is not an obligation which arises under law independent of the contract[5], an obligation which arises under a contract with a third party[6], past consideration[7] or an obligation which exists under a contract with a person who has made a new promise for which the existing obligation is alleged to provide good consideration.[8] In the case of Chappel & Co v Nestle,[9] Nestle offered customers a record if they sent in money and three Nestle wrappers. The question raised was: are used Nestle wrappers good consideration?  The Court found that they were good consideration because even trivial things of very little economic value are adequate consideration. This case demonstrates how consideration ‘must be sufficient but need not be adequate’[10] and really shows how the courts can use consideration to establish consensus between the parties but also the reliance of the parties upon one another. These are the court’s concerns not whether the contract was valuable.

 Intention to create legal relations

Next we shall consider intention to create legal relations. Whilst intention to create legal relations does help to establish consensus between the parties, it also allows the contract to become legally binding. Intention to create legal relations shows that the parties were aware that court action could arise out of their consensus. Therefore they are not just agreeing between themselves but also preparing for the future consequences of their contract. This means that the parties can go to court in order to enforce legally binding contracts and that the courts can ensure that parties who breach contracts have to fulfil their contractual duties or pay compensation to the other party. If all agreements could be enforced by courts they would be inundated with cases and this is not practical. Subsequently, intention to create legal relations is only usually recognised in commercial agreements and not domestic agreements. An example to explain this rule is Jones v Paddavatton[11]. At first instances the court ruled that the contract is not legally enforceable because there is no intention to create legal relations as it is a domestic agreement. On appeal Fenton Atkinson LJ explained that the appeal had failed because the contract was not legally binding as the conduct of the parties indicated lack of intention to create legal relations. Also the arrangement is too vague and the daughter's statement included: 'what kind of mother sues her daughter?’[12] Overall this shows how the intention to create legal relations establishes more than just consensus between the parties but also an awareness that legal consequences can arise from their agreement. This means that the rules of contract formation not only elaborate on the requirement of establishing consensus between the parties but also to establish that the parties are aware of the consequences of their agreement.

Communication

Communication of the offer is another important rule of contract formation. How the offer is communicated is important in establishing consensus between the parties as it is the way that the offeree finds out about the offer. It also helps to put a time limit on the consensus so that the parties are not bound forever. In the case of Payne v Cave[13] it was judged that an offer expires after a ‘reasonable’ amount of time. This is to ensure that the offeror does not get bound to receive and act on acceptances forever. Much like intention to create legal relations this ensures that the law on contract formation is practical and that all parties to the contract know when acceptances have to be made. Communication of the offer is also crucial in ensuring that all parties know that a contract has been formed and ensures that the law only enables contracts to be formed when all parties are aware that the offer and acceptance exist. A leading case on this point is Dickinson v Dodds[14]where it was judged that the offeree can be told by anyone that the offer no longer stands, it does not have to be the offeror who tells the offeree that the offer has been revoked. Essentially showing that it does not matter who tells the offeree about the offer as long as they are trustworthy so that it can be ensured that both parties have knowledge of the progress of the contract formation or offer revocation.

Certainty of terms

A final point to examine is the certainty of terms. Terms of a contract must be understood between both parties to mean the same things so that a contract can be executed. The court’s role is to enforce and interpret what is agreed not create contracts. Therefore if the parties agreement is incomplete or uncertain it is not enforceable as a contract because uncertainty of terms means there is no consensus between the parties (ad idem). There are two leading cases on this matter May and Butcher ltd v The King[15]and Hillas and Co v Arcos.[16] In May and Butcher Ltd V the King, the court held that there is no agreement on prices or dates and so no concluded contract because there is no certainty of terms. Viscount Dunedin stated that a concluded contract is 'one that settles everything that needed to be settled.' [17] In this case there was an arbitration clause containing a mechanism to work out a price but the court said that the arbitration clause is not a price calculation mechanism. In the other leading case Hillas and Co v Arcos, the court said there was a contract for 1931 because it was implied in the first contract and the conduct of the parties proved that the parties had an intention to create legal relations. The cases of Hillas and Co v Arcos and May Butcher ltd v the King can be reconciled because in Hillas and Co v Arcos the contract was almost complete and the parties’ conduct gave the court away to determine what they intended and in May Butcher ltd v the King the greatest extent of required certainty is displayed as since the required certainty has become more flexible. Essentially, this shows how certainty of terms is key when establishing whether the parties have reached consensus but also helps courts to settle the cases brought to them as they can identify the intentions of each of the party’s and remedy the situation accordingly.

Conclusion

After examining a few of the main rules of contract formation this article concludes that the rules of contract formation are primarily concerned with establishing consensus between the parties but they can also be used to establish other key facts such as reliance between the parties, the knowledge of the parties that they have entered into a contract, that the parties know that there could be legal consequences to their consensus and to ensure that the law on contract formation is practical. All of the rules of contract formation that have been examined help to establish consensus between the parties. Consideration also helps to establish reliance between the parties. Intention to create legal relations helps to establish that the parties know there could be legal consequences to their consensus and makes the laws on contract formation practical. Communication of the offer establishes the knowledge of the parties and their understanding of the agreement.  The need for certainty of terms helps to establish that all parties had knowledge of the offer and acceptance. As a result it is reasonable to say that the rules on contract formation are an elaboration of the requirements of establishing consensus between the parties but this is not their only function other facts also play a role.

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[1] Ewan Mckendrick, Contract law text cases and materials (Fifth edition published 2012) p 44

[2]  Gibson v Manchester City Council [1974]  All E.R 842

[3] Carlill v Carbolic Smokeball co [1893] 1 QB 256

[4] Lush LJ in Currie v Misa [1875] LR 10 Ex 153, 162

[5] Collins v Godefroy [1831] 1 B&Ad 950

[6] Pao On v Lau Yiu Long [1980] A.C 614

[7] Roscorla v Thomas [1842] 3 QB 234

[8] Stilk v Myrick [1809] 2 Camp 317

[9] Chappel and co v Nestle [1961]  AC 87

[10] Ibid

[11] Jones v Padavatton [1969] 1 WLR 328

[12] Ibid

[13] Payne v Cave [ 1789] 3 T.R 148

[14] Dickinson v Dodds [1876] 2 ch.D 463

[15] May and Butcher ltd v the King [1934] 2 KB 17n

[16] Hillas & Co v Arcos ltd [1932] 147 LT 503

[17] Viscount Dunedin in May and Butcher ltd v the King [1934] 2 KB 17n

Constitutional Crises- Dicey's concept of parliamentary sovereignty is still relevant

Dicey and Parliamentary Sovereignty

Dicey's  argument that parliamentary sovereignty in the UK constitution means that parliament has:

' the right to make or unmake any law whatever; and further that no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.' [1]

Image Source: http://thoughcowardsflinch.com/2010/03/23/the-tories%E2%80%99-secret-plans-for-the-end-of-parliamentary-sovereignty/

 First to be considered is the reason Dicey believed parliamentary sovereignty to be this way. For the sake of this article it will be assumed that Dicey intended his definition to be normative in that he was describing how parliamentary sovereignty should be ideally. This article will argue that Dicey's view of parliamentary sovereignty can still be reconciled with constitutional reality.

Since Dicey was writing, the European Communities Act[2], judicial review and the Human Rights Act[3] have been used to argue that his view of parliamentary sovereignty cannot be reconciled with constitutional reality. This article will argue that Dicey's view of parliamentary sovereignty is still accurate in constitutional reality on the grounds that the UK parliament signed the European Communities Act, judicial review reinforces parliamentary sovereignty and the Human Rights Act does not actually make contradictory acts of UK parliament invalid.

The relevance of the European Communities Act

Many would argue that t the European Communities Act could be seen as  evidence that suggests that parliament no longer has ‘the right to make or unmake any law whatever’[4] as Dicey proposes but instead proves that parliament can in fact be overruled by EU law.

In response to this it can be argued that Dicey is in fact right in saying that ‘parliament can make and unmake’[5] any laws because it was parliament who signed the European Communities Act voluntarily and so the sovereignty they gave to the EU can be retained at parliament’s will therefore they can regain absolute sovereignty.  The case of Thoburn[6] even goes do far as to suggest that the European Communities Act 1970 was created by Parliament. So adherence to EU law is merely courts following the will of Parliament. Also Dicey suggests that nobody has the right to override the rules of parliament which again, despite the European Communities Act, is true in constitutional reality. Although the EU can say that UK acts of parliament do not conform to EU legislation it is the parliament themselves who choose to change acts of Parliament in order to make them comply with EU law. If they did not do this then they would be in breach of the European Communities Act but whilst this is not a favourable outcome it is possible.

The point to be noted is that all of the choices related to the transfers of sovereignty due to the European Communities Act were made voluntarily by parliament and can be unmade if parliament wishes. This is explained in the case of Factortame [7] which exemplifies, through the courts suspending the Merchant Shipping Act 1998, how national courts can strike down Act of Parliament's that contravene EU law. In his judgement Lord Bridge explained how EU law should override acts of parliament because it was parliament’s decision to join the European Community and parliament’s decisions must be respected. Therefore Dicey was completely right in saying that parliament has: ‘the right to make or unmake any law’[8]

Judicial Review and judge's creativity

Another counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is one which occurs as a result of judicial review. This counterpoint is based on the views of Paul Craig[9] who argues that judicial review is about judge’s creativity and not parliamentary sovereignty. Craig’s argument counters the argument in this essay by claiming that the content of judicial review is about judges using their creativity to make laws to govern public bodies and stop them acting unfairly. If this is true then Dicey’s account of parliamentary sovereignty becomes very difficult to reconcile with constitutional reality.

Fortunately it can easily be argued that judicial review does in fact reinforce Dicey’s view that parliament does have complete sovereignty in the UK. The strongest argument is based on the ideas of Professor Christopher Forsyth who argued that:

 ‘The judicial achievement in creating modern law did not take place in a constitutional vacuum. It took place against the background of sovereign legislature that could have intervened at any moment,’[10]

This demonstrates how parliamentary sovereignty is the basis of judicial review. It is a strong point that judicial review cannot be used to question acts of parliament and if courts question Acts of Parliament, in judicial review cases, all they can do is request that parliament re-think the act. Courts can in no way force parliament to change an act. Judge’s creativity in judicial review cases is not about overriding parliamentary sovereignty but is actually about the judges extending the law to cover situations that parliamentary sovereignty does not cover. In this sense, judicial review is actually supporting Dicey’s view that parliament have ultimate power within the constitution.  By having this system whereby the courts cannot question parliament’s act and decisions constitutional reality is actually very compatible with Dicey’s view that no one can override parliamentary laws.

      The Human Rights Act 1998

The final counterpoint to the argument that Dicey’s account of parliamentary sovereignty can be reconciled with constitutional reality is a point put forward after examining the Human Rights Act. It can be argued that the Human Rights Act 1998 overrides parliamentary sovereignty is the UK in a way that Dicey deems impossible. Article 6, section 2 of the TEU) [11] imposes an obligation on Member States to respect the rights arising from the European Convention of Human Rights.

One could interpret this to mean that the Human Rights Act is part of law in member states of the EU because EU law has supremacy over national law and so on these grounds Dicey would be inaccurate in saying: ‘no person or body is recognised by the law of England as having the right to override or set aside the legislation of parliament.’ [12] However it could be argued that the Human Rights Act supports the acts which the supreme UK parliament has already created. If this is the case then EU law is merely a supporting extension of the UK law which was created by the sovereign UK parliament.  This is the view taken by Lord Millet in Ghaidan v Godin-Mendoza where he judges: ‘Sections 3 and 4 of the human rights act were carefully crafted to preserve the existing constitutional doctrine.’[13] This appears to mean that the Human Rights Act was created as a result of parliamentary sovereignty to conform and not override rights that already existed as a result of acts passed by parliament. If this is the case then Dicey was right. Subsequently this means that every counterpoint mentioned in this essay can be overcome and that the argument that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality is a very strong.

      Conclusion

To conclude, after a concise examination of the possible flaws with the argument, it can be reasonably concluded that Dicey’s account of parliamentary sovereignty can still be reconciled with constitutional reality. The counterpoints that the European Communities Act, judicial review and the Human Rights Act undermine Dicey’s account of parliamentary sovereignty are all very clever arguments, however they can be overcome by looking more closely at the fundamental choices that parliament has made (for example voluntarily signing the European Communities Act). It is when we look closer at the intricacies of the European Communities Act, judicial review and the Human Rights Act that we can see that parliamentary sovereignty was not actually a victim of these concepts but something that they all support and conform to.

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[1]  AV Dicey ,Introduction to the study of the law of the constitution  (first published 1885, London: Macmillan & Co 1959) p 39

[2] European Communities Act 1972

[3] Human Rights Act 1998

[4] Dicey, cited above at n1 at p39

[5] Dicey, cited above at n1

[6] Thoburn v Sunderland City Council [2002] All ER (D) 223

[7] R v Secretary of State for Transport, ex parte Factortame Ltd and others   [1999] All ER (D) 1173

[8] Dicey, cited above at n1

[9] P.Craig, Britain in the European Union’ in J .Jowell and D.Oliver The changing constitution p 91-99

[10]  Christopher Forsyth,  Of Fig leaves and fairy tales: The Ultra Vires doctrine, the sovereignty of parliament and judicial review (first published 1996) p 122

[11] TEU (treaty of Maastrict 1992) s2

[12]Dicey, cited above at n1

[13] Ghaidan v Godin-Mendoza [2004] UKHL 30 [57]

Human Rights Act- the perfect combination of rights protection and judge power

What is the Human Rights Act?

The Human Rights Act 1998 (HRA)[1] was created using some of the rights set out in the European Convention on Human Rights (ECHR) and seeks to preserve the fundamental human rights of British citizens. This popular argument that the HRA excessively empowers judges in order to protect fundamental rights demands an examination of two opposing positions. First in order for the HRA to effectively protect human rights judges must be excessively empowered and second the excessive empowerment of judges is not necessary for the HRA to achieve the protection of human rights. This article argues the latter.

Image source: UK Human Rights Blog

Le Sueur describes human rights in their most basic form as ‘basic, inviolable, fundamental and constitutional.’[2] The HRA was formed from this basis in order to protect British citizen’s human rights and ‘bring rights home’[3].” Gardbaum explains how the HRA balances:  ‘Recognition and effective protection of certain fundamental rights or civil liberties’ and  ‘a proper distribution of functions and decision making power between courts and the elected branches of government.’[4]

       Excessive power to judges?

From a Diceyan viewpoint ‘excessive power’ would suggest that judges no longer just fulfil their function as interpreters of statute and implementers of the law but go on to infringe on the powers of the executive or the judiciary. Assuming this is what is meant by ‘excessive power’ then section 3 of the HRA could be interpreted to be a grant of excessive power to judges. In Re S[5] Lord Nicholls famously said that judges had ‘crossed the boundary between interpretation and amendment’ if this is true then this is a good example of judges being given excessive power. However there has been much criticism of this view, section 3 of the HRA clearly states judges should ‘interpret’ and not amend statute ‘so far as is possible’. The wording of the statute clearly states that the judges cannot change statute to the extent that parliament’s intention is no longer evident.

This article advocates the argument that the HRA effectively protects human rights without giving the judges excessive power.  The role of the judges in the implementation of the HRA section 3 is to interpret legislation ‘so far as is possible’[6] to make it compatible with the ECH. Many believe that this crosses the boundary between interpretation and amendment. Ewing, Gearty[7] and Klug all argue that section 3 damages parliamentary sovereignty. Klug said R v A[8]: ‘turned parliamentary intention on its head.’[9] If so, there are implications for parliamentary sovereignty because judges would effectively be legislating. A strong counter point to this would be Lord Slynn’s point in R v A[10] ‘The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty.’ Kavanagh proposes that when using section 3 judges should consider social policy, parliament’s response to the decision, justice for the individual in the case remedy and the jurisprudence of the ECHR[11]. This provides factors for judges to think about which prevents them having ‘excessive power’ under the HRA and means that the HRA is a good illustration of how human rights can be protected without giving judges excessive power. Gardbaum counters by explaining that section 3 is excessive power for judges and that section 4 should be used instead as it allows parliament to ultimately change the law to be convention compatible. To overcome this criticism it must be remembered the HRA itself is an act of parliament and so by giving judges any power it can be assumed that it is acceptable to parliament to allow them to interpret statutes in order to make them convention compatible. Also statutes cannot be interpreted in a way that does not go ‘with the grain’[12] of the statute and so parliamentary sovereignty is preserved.

Section 4 of the Human Rights Act 1998

Many academics believe section 4 of the HRA reduces the separation of powers by allowing judges to declare statute incompatible with the convention rights because in response to a section 4 declaration, section 10 allows a fast track remedial procedure to take place. Many believe that this is a Henry VIII clause that contradicts parliamentary sovereignty as it allows government ministers to amend statute by using a declaration of incompatibility[13]. Young counters  this point by explaining that section 10 only contradicts parliamentary sovereignty when one interprets the Diceyan concept of implied repeal to mean that future legislation partially impliedly repeals the prospective Henry  VIII clauses and that section 10 can overturn legislation enacted post HRA. The decision in Thoburn[14] (future legislation does not implied repeal prospective Henry VIII clauses) should be used in all section 10 cases in order to ensure that section 10 does not override parliamentary sovereignty[15].  Section 4 affirms the separation of powers by allowing parliament to respond to the judge’s decision. A premise that is supported by legislative evidence as parliament has amended statute in 11 out of the 19 declarations of incompatibility cases so far.[16] This has increased dialogue between the judiciary and parliament because both are more aware of what their counterparts are doing, therefore the powers remain distinct and the transparency of the different branches of the legal system is maintained which ultimately leads to the rule of law being upheld. Therefore judges have not been excessively empowered and section 4 is what restricts judges having excessive power because it affirms the separation of powers, helps to uphold the rule of law and supports dialogue between the judiciary and parliament. Jack Straw commented through that HRA section 4 ‘the government thought it was important to enshrine parliament’s sovereignty of the bill’[17]  Parliament effectively used its sovereignty to allow judges to bring incompatible statutes to parliament’s attention  because they deemed this to be the best way to protect rights. It was parliament’s intention and so the judges cannot be said to be excessively empowered.

      Conclusion

To conclude, the HRA is an illustration of how to effectively protect rights without ‘excessively empowering’ judges. This view is opposed because the popular tabloids’ report negatively on the HRA[18]this puts pressure on politicians to change the HRA and perhaps repeal it and introduce a bill of rights[19].  Overall this has led to academic response[20] that is a powerful influence on the public opinion about the power of judges under the HRA and rights protection in general. By removing the bias caused by the media we can see the HRA is an ingenious act of parliament which allows the British constitution’s protection of rights to evolve in a way that is controlled by parliament’s intentions. Section 3 maintains parliamentary sovereignty but still allows statutes to be made convention compatible without parliament having to spend time and money repealing and amending all questionable statutes. Section 4 supports section 3 by allowing incompatible statutes to be bought to parliament’s attention but still preserve the separation of powers, parliamentary sovereignty and the rule of law by only allowing parliament to decide whether or not statute is amended and allowing a declaration of incompatibility to be made without statute being deemed invalid.

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[1] Human Rights Act 1998

[2] Le Sueur, Sunkin ,  Murkens, Public Law text cases and materials (First published 2010, Oxford University Press)175

[3] Secretary of State for the Home Department, Rights Bought Home: The Human Rights Bill (CM 3782 Oct 1997)

[4] S. Gardbaum “How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment” (2011) 74 Modern Law Review 195

[5] Re S [2002] UKHL 10 (40)

[6] Human Rights Act 1998 3 (1)

[7] K. Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 Modern Law Review 79

[8] R v A [2005] UKHL 25      

[9] Klug, Judicial deference under the Human Rights Act 1998  EHRLR 125,128

[10] R v A [2001] UKHL 25

[11] A. Kavanagh, ‘Unlocking the Human Rights Act: The "Radical" Approach to Section3(1) Revisited’ (2005) European Human Rights Law Review 259

[12] Ghaidan v Mendoza [2004] UKHL 30 (33)

[13] Parte H [2001] EWCA Civ 415, Baiai [2008] UKHL 53 and Thompson [2010] UKSC 17

[14] Thoburn v Sunderland City COUNCIL [2003] QB 51

[15] Young, Parliamentary Sovereignty and the human rights act (First published 2008, Hart Publishing) 6-8

[16] Ministry of Justice, Responding to human rights judgments, Annex A: Declarations of Incompatibility

[17] Jack Straw Hansard HC 21/10/98 Col 1300

[18] The Sun 09/02/11

[19] D.Cameron Speech (26/06/06)

[20] Hiebert, Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?, Oxford Law Journals, vol 4 issue 1