Law and Rights
The Human Rights Act 1998 section 2 places on courts a requirement to "take into account" decisions of the European Court of Human Rights. Lord Bingham in Ullah v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, said: ?The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less.? This is the so-called "mirror principle" and I have argued that, on the whole, it makes good sense - (for example post of 3rd December 2013).
In an article published by The Telegraph, Mr Sadiq Khan (Shadow Justice Secretary) indicates the Labour Party's support for the European Convention on Human Rights and the Human Rights Act. However, Mr Khan goes on to suggest that a future Labour government would issue "guidance" to the judiciary about how they should apply section 2 of the Human Rights Act. Mr Khan, significantly, does not rule out legislation but would clearly prefer the proposed guidance to work.
Whilst Mr Khan's article is refreshing in its support for human rights, the idea of guidance on interpretation is both constitutionally objectionable and unnecessary. Objectionable because the judiciary apply the law as they find it and not as directed by the executive. The "separation of powers" demands no less. It is unnecessary because the judiciary has already recognised that the mirror principle is not absolute - (see Thoughts on Chester and McGeogh). In any event, it is always open to Parliament to legislate and this includes amending the Human Rights Act 1998.
For articles on Mr Khan's proposals see Mark Elliott in Public Law for Everyone 3rd June 2014; Carl Gardner (Head of Legal blog) 4th June - Sadiq Khan: let me guide you where I think you're going ; Adam Wagner UK Human Rights Blog 5th June. There is also an interesting further viewpoint from the London School of Economics.
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Law and Rights
Human Rights and the Labour Party
In an article published by The Telegraph, Mr Sadiq Khan (Shadow Justice Secretary) indicates the Labour Party's support for the European Convention on Human Rights and the Human Rights Act. However, Mr Khan goes on to suggest that a future Labour government would issue "guidance" to the judiciary about how they should apply section 2 of the Human Rights Act. Mr Khan, significantly, does not rule out legislation but would clearly prefer the proposed guidance to work.
Whilst Mr Khan's article is refreshing in its support for human rights, the idea of guidance on interpretation is both constitutionally objectionable and unnecessary. Objectionable because the judiciary apply the law as they find it and not as directed by the executive. The "separation of powers" demands no less. It is unnecessary because the judiciary has already recognised that the mirror principle is not absolute - (see Thoughts on Chester and McGeogh). In any event, it is always open to Parliament to legislate and this includes amending the Human Rights Act 1998.
For articles on Mr Khan's proposals see Mark Elliott in Public Law for Everyone 3rd June 2014; Carl Gardner (Head of Legal blog) 4th June - Sadiq Khan: let me guide you where I think you're going ; Adam Wagner UK Human Rights Blog 5th June. There is also an interesting further viewpoint from the London School of Economics.
- Where We Are With Human Rights
Several recent post have looked at various aspects of human rights and its protection in the UK. This is an absolutely vital area of law and one where there is a clear political schism as to the future of human rights law in the UK. Barrister Adam...
- Labour Party Conference ~ Speech By Sadiq Khan Mp (shadow Justice Secretary)
At the Labour Party Conference held in Manchester (20th - 24th September), the Shadow Justice Secretary delivered a short speech which may be read here. One clear difference emerged from the stance, at least to date, of the Conservative Party. ...
- The Court May Issue A Declaration Of Incompatibility
On 3rd September 1953, the European Convention on Human Rights came into force with the United Kingdom among the first signatories. For the next 47 years, the Convention operated almost entirely externally to the domestic legal systems within the...
- The Labour Party Conference - Speech Of Sadiq Khan Mp
October is with us and it is Conference time for the political parties. In his conference speech on 25th September, Sadiq Khan MP (Shadow Secretary of State for Justice), spoke of the need for confidence in the criminal justice system so that, for...
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Updated Joint Enterprise: In December 2012, the Director of Public Prosecutions issued new guidance relating to charging decisions where a case involves 'joint enterprise.' The Defence Brief blog takes a look at this thorny topic. ...