Conflicts Between Judges and Parliament
Title:
‘The approach of the Law Lords to statutory interpretation has been radically changed by the Human Rights Act. Judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.’
In Duport Steels Ltd v Sirs, Lord Scarman stressed: ‘In the field of statute law the judge must be obedient to the will of Parliament as expressed in the enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. It has to be understood that the primary duty of judges is to interpret the law not to make but after the enactment of Human Rights Act 1998 judges could be able to contribute the law making process through the interpretation of the ECHR rights. Some people say that this might abolish the long going principle of Parliamentary Sovereignty but they might forget that the intention behind the making of Human Right Act is to giving the people the convention rights from Home not to abolish the Parliamentary sovereignty. So if the judges use the purposive approach then they might be able to draw a line between the Act of Parliament and Human Right Act 1998. There are three basic rules of statutory interpretation:
It is often said that there are basic rules of statutory interpretation – the literal rule, the golden rule and the mischief rule. It is important to appreciate that this classification is a considerable oversimplification of the process of the statutory interpretation.
The literal rule:
According to the literal rule, it is the task of the court to give the words to be construed their literal meaning regardless of whether the result is sensible or not. Lord Esher put the proposition succinctly in 1892:
“ if the words of an Act is clear you must follow them, even though they
‘The approach of the Law Lords to statutory interpretation has been radically changed by the Human Rights Act. Judges now see themselves as legislating human rights through their interpretation of Acts of Parliament.’
In Duport Steels Ltd v Sirs, Lord Scarman stressed: ‘In the field of statute law the judge must be obedient to the will of Parliament as expressed in the enactments. In this field Parliament makes and unmakes the law, the judge’s duty is to interpret and to apply the law, not to change it to meet the judge’s idea of what justice requires. Interpretation does, of course, imply in the interpreter a power of choice where differing constructions are possible. It has to be understood that the primary duty of judges is to interpret the law not to make but after the enactment of Human Rights Act 1998 judges could be able to contribute the law making process through the interpretation of the ECHR rights. Some people say that this might abolish the long going principle of Parliamentary Sovereignty but they might forget that the intention behind the making of Human Right Act is to giving the people the convention rights from Home not to abolish the Parliamentary sovereignty. So if the judges use the purposive approach then they might be able to draw a line between the Act of Parliament and Human Right Act 1998. There are three basic rules of statutory interpretation:
It is often said that there are basic rules of statutory interpretation – the literal rule, the golden rule and the mischief rule. It is important to appreciate that this classification is a considerable oversimplification of the process of the statutory interpretation.
The literal rule:
According to the literal rule, it is the task of the court to give the words to be construed their literal meaning regardless of whether the result is sensible or not. Lord Esher put the proposition succinctly in 1892:
“ if the words of an Act is clear you must follow them, even though they
Bibliography: Journals * White paper, Rights Brought Home: The Human Rights Bill, Cm 3782, 1997. * Kavanagh, Aileen, The role of parliamentary intention in adjudication under human right act 1998, Oxford Jurnal of Legal Studies, 2006 * Gearey, Adam,The judicial practice of statutory interpretation, University of London, 2007 [ 6 ]. Gearey, Adam,The judicial practice of statutory interpretation, University of London, 2007 [ 7 ] [ 8 ]. 1993, 1 All ER 42. [ 9 ]. 1993, 1 All ER 42 [ 10 ] [ 12 ]. 'An Overview ' in J.Beatson (ed.), The Human Rights Act and the Criminal Justice and Regulatory Process(Oxford: Hart Publishing, 1999) xiv. [ 15 ]. 2002, QB 48 [ 16 ] [ 21 ]. 2003, HRLR 33