(5) Judges and Civil Liberties - Human Right Act 1998 continued

Court powers in relation to HRA
1. The HRA nevertheless, when a court believes that legisation cannto be reconciled with Convention rights, it issues a "declaration of incompatibility"
  1. This forces Parliament either to revise the legislation in question and bring it into line, or to set aside certain of its provisions through the process of "derogation
Cases in which the HRA or ECHR have been used to protect individual rights are:
1. The rights of "spouses" to succed to a tenanct in event of a tenant's death was extended to homosexual couples (2004)
2. Nine terrorist supsects held without trial in Belmarsh Prison were released on grounds that the law on which they were held was based on discrimination between foreign nationals and UK subjects (2004)
3. The decision not to deport the murderer of Philip Lawrencewhen his sentence is complted to his country of origin, Italy (2007)
4. The Court of Appeal Blocked the deportation to Jordan of Abu Qatada (belived to be senior figure in al-Qaeda) due to fears of torture being used in trial, deported in 2013 over new anti-torture treaty
5. In a ruling linked to the HRA, the Supreme Court declared that measures to freeze that assets of terrorist suspect were unlawful (2010)
6. An immigration tribunal prevented the deportation to Pakistan of two terrorist suspects associated to al-Qaeda
What power does the HRA give to the judiciary?
1. The Act has significantly strenghened the ability of judges to apply the rule of law and uphold individual rights, including the rights of unpopular minorities
  1. This has forced ministers to be more sensitive to civil liberties , thereby promoting greater accountability and improving trust in government
How has the judiciary challenged legislation with regards to human rights?
1. Judges are, effectively, able to "rewrite" legisation
  1. Judges are able to encroach on the policy-making role of politican
2. Judges interpreation of the Act - has been criticized for applying an unbalanced view of individual rights that fails to take sufficient account of civic responsibilities
How has the HRA upheld judicial independence from the executive or legislative?
1. Judges to use the power of the state in favour of individual rights
2. The Coalition have suggested a move to a UK Bill of Human Rights
3. Though this act, it appeas, that the situation of the judiciary forcing the state seems to have been reversed
Howads warns against Judicial activism 2005
1. Conservatives leaders repeated his pledge to read Britain's Human Right Act
2. Aggressive judicial activism will undermine the public confidence in the impartiality of our Judiciary
Has there been a growth in Judicial review
1. UK Judge cannot overturn Acts of Parliament Because of the principles of parliamentary sovereignty
2. They can determine the lawfulness of action on the basics of delegates legisaltion using the power of Ultra-vires - where by Judges debate whether Public servants have acted without statutory authority
3. A growth in judicial activism since 1980's has encouraged the power of judicial review (1999 - 45,000 cases)
4. E.G 2011, high court ruling that Michael Gove, abused his power in failing properly to consult 6 councils over plans to stop their school building ptogrammes

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