Critically analyse the following statement: 'The Human Rights Act 1998 gives judges too much power to undermine

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Question:

Critically analyse the following statement: 'The Human Rights Act 1998 gives judges too much power to undermine Parliament'

To what extent do you agree? Refer to both parliamentary sovereignty and the separation of powers in your answer.

Is there tension between the role of parliament and judges under the HRA ?

section 3 HRA - Interpretation of legislation.

(1)So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

(talk about case law) (talk about how the British bill of rights wants to get rid of this section- this may suggest that this section gives judges too much, as parliament may see it as a threat)

Case law:

- Ghaidan v Godin-Mendoza (2004) UKHL 30

- Poplar Housing and Regeneration Community Association Ltd v Donoghue

[2002] QB 48

- RvA(No2)[2001]UKHL25

- Sheldrake v DPP [2005] 1 AC 264

HRA review-provides academic opinions on whether Section 3 gives judges too much power

section 4 HRA- Declaration of Incompatibility , NOT striking down legislation

(Non binding, bill of rights doesn't want to get rid of it but it is trying to limit it, argument it may not give judges power it may give them political power)

Case law:

- A v United Kingdom (the Belmarsh case) [2004] UKHL 56

- R (Chester) v Secretary of State for Justice [2012] UKSC 63

Go over these sections- do these sections under the HRA give judges power

Intro- outline your main arguments Set out whether you think You can argue the following:

HRA give judges too much power,

HRA doesn't give judges too much power

Some parts of the HRA give judges too much power

Paragraphs First sentence-set out your argument for that paragraph What is the section about, and do you think it gives judges too much power Use evidence to support, or goes against your argument (critically analyse) Last sentence - Does not give judges power

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The claim that "The Human Rights Act (HRA) 1998 gives judges too much power to undermine Parliament" is a complicated one that necessitates a study of the division of powers and parliamentary sovereignty. According to Section 3 of the HRA, primary and secondary legislation must be construed in a way that, to the greatest degree feasible, respects convention rights. Case law can be used to explore the several ways in which the courts have interpreted this regulation.

One objection is that judges are given undue discretion under Section 3 of the HRA, which permits them to interpret the law and essentially modify its meaning. Though the Rent Act of 1977 did not specifically mention same-sex partners, the House of Lords understood the term "spouse" to include them in Ghaidan v. Godin-Mendoza (2004) UKHL 30. Some who contend that courts shouldn't have the authority to interpret legislation; rather, this is a job best left to Parliament, attacked this ruling.

In a similar vein, the Court of Appeal permitted the HRA to supersede laws pertaining to the downgrading of secure tenancies in Poplar Housing and Regeneration Community Association Ltd v. Donoghue [2002] QB 48. Some see this as an instance of judges overstepping their authority and subverting the will of Parliament.

It is crucial to remember that the HRA's Section 3 also states, "so far as it is possible to do so." This implies that courts must, to the greatest degree feasible, interpret the law in a way that is consistent with convention rights rather than having unrestricted authority to do so. The House of Lords concluded in R v. A (No 2) [2001] UKHL 25 that it was not conceivable to construe the Sexual Offences (Amendment) Act 2000 in a way that would protect an individual who had consenting homosexual intercourse with a child, demonstrating this constraint on judicial jurisdiction. This demonstrates how the wording and purpose of the statute itself place restrictions on judges.

In addition, Section 4 of the HRA gives judges the authority to find legislation incompatible with rights guaranteed by the convention. This proclamation does not, however, invalidate the law. The House of Lords ruled in A v. United Kingdom (the Belmarsh case) [2004] UKHL 56 that the Anti-terrorism, Crime and Security Act 2001's prolonged imprisonment of foreign terrorist suspects violated their right to liberty under the European Convention on Human Rights. Still, Parliament had the last say on how to resolve this conflict. This demonstrates that judges can spot inconsistencies between laws and convention rights but are not able to overturn choices made by Parliament directly.

Ultimately, it might be said that although courts are granted certain authority under the HRA to interpret and determine whether laws are consistent with convention rights, this authority is not unrestricted. Judges must interpret the law in a way that is, to the greatest degree feasible, consistent with convention rights, but also adhering to the text and meaning of the legislation. The provisions in the HRA maintain a balance between the judiciary and Parliament, providing for the protection of human rights while yet preserving legislative autonomy.

In conclusion, it is not totally true to say that the HRA grants judges excessive authority to subvert Parliament. Judges are given certain authority under the HRA to interpret laws in a way that respects convention rights, although this authority is restricted and has limitations. The Human Rights Act's provisions maintain the primacy of Parliament while guaranteeing the preservation of human rights through a balance between the court and Parliament.