Law Lords Statuory in British Legal System

The British legal system has evolved significantly over the last ten years while maintaining the underlying trends that were never subject to challenge at least radically. This transformation, especially following the enactment of Human Rights Act 1998, owes much to the reaction to the state of British society before the election of Prime Minister Tony Blair in 1997.

The question of a bill of rights arose in a context where human rights violations by the executive were particularly acute. The reform of incorporating the European Convention on Human Rights through an act of Parliament, the HRA, therefore, occurred in a political context where the judges actually became the last bastion of protection of rights and freedoms. A power struggle is particularly intense therefore expressed between power and judicial power legislation.(Poole, Thomas, 2011)

The HRA replays the theme of the power struggle between the established powers while preserving the principle of parliamentary sovereignty.  It also expresses the possible declaration of incompatibility of the proposed legislation by the government and the executive the power to override.

It is therefore clear that the HRA merely prolongs the reality of relations between the powers. It provides that in cases of manifest incompatibility of the legislation, the judge may make a declaration of incompatibility. But this possibility is limited to the highest courts and only opens a possibility for the Minister to amend or repeal the legislation to remedy the illegality of the text. The Minister's power remains discretionary so that the judiciary does not know the legality of British texts, notwithstanding their implementation in cases of jurisprudence.(Kavanagh, 2009)

How do Judges deal with Statutory Interpretation?

Statutory Interpretation is the process through which judges interpret certain legislation and apply it. However due to the various reasons that may be involved there are a couple of regulatory outlines that have been highlighted by judges themselves to simplify matters. For this there are a number of canons devised through which these issues are addressed. These include:

·         Textual: these are generally the rules of thumb based on the surface and apparent meaning of words stated in the legislation and the subsequent interpretation that is made.

·         Substantive: this particular form of canon instructs the court to encourage an interpretation that is in favor or in accordance with the contemporary customs and culture prevalent in the society.

·         Deference: this canon intends to base its interpretation of any other institution. For example the Congress which is the prime law making body in the country can be used for this purpose.

Literal Rule

Under the literal rule of statutory interpretation, the first rule or interpretation of any legislation is considered to be the final one. It is on the basis of literal rule due to which words are given their literal meaning and the interpretation of words present in the legislation is also made on these standards.

Golden Rule

When a Golden rule is applied to statutory interpretation, it implies that the judge has the authority and the power to deviate from the normal meaning of the words present in the legislation in order to avoid an absurd result.

Mischief Rule

In case of applying the Mischief Rule the court and judges intend to address and seek the attention of Parliaments and its members regarding the loopholes or shortcomings of any previously promulgated law. The term mischief is used to find any defect that the former law had which in turned beget to the formation of the new legislation.

Purposive Approach

The Purposive Approach has been designed in recent times in order to not just simply to address the loopholes that may be present in previous laws, but, it also intends to help the Parliament in achieving the function from the devised law. With the help of this approach gaps between the process of law making and its interpretation are shortened.

Rules of the law

The procedure under the HRA is therefore presented as an exchange between legislating and judicial powers, which lends credence to the idea of ​​institutional balance of power in which the first attempts to push through measures in the form of primary legislation or secondary and the second to detect illegalities in order to make these measurements with the rights protected under the European Convention on Human Rights and incorporated by the HRA.

Consider that the mission of judges is not to oppose in principle the executive but to preserve the coherence of the legal system. This ability to judge the opposition is anyway limited by the duty of consistent interpretation, that is to say an obligation to "read" and "give effect" to the legislation in a manner consistent with the intention of Parliament which voted the HRA.(Cousins, 2010)

More than increases in the ratio of forces in favor of judges, the HRA confirms that fundamental rights are at the heart of this issue therefore it can not shift the balance of institutional forces. There, in that decisions made under the HRA are becoming more numerous and show a daring increasingly evident from the judiciary vis-à-vis the legislation initiated by the government majority, but also bills themselves when judges exercise their power to control.

The Pinochet case which announced that judges can use the HRA was not yet in force. But it is especially in the post-September 11 that this trend continued. Measures to fight against terrorism sparked action on the basis of the violation of rights incorporated by the HRA.(Howard, 2005)

It is indeed not without interest for the executive who can legally impose its decision. But it is the judges who make use of it more significant since they are obliged to justify their decision as it aims to be interpreted in a "constructive" legislation in force, that is to say to stand up to the will of executive power maintained.

The Human Rights Act provided the legislative amendments in Parliament. By this means, the law seeks to preserve parliamentary sovereignty. It is certain to say that an interpretation that differs substantially from the basic meaning of an Act of Parliament crossed the line between interpretation and amendment. This is especially true when the difference has important practical implications that courts are not qualified to assess. House of Lords therefore proceeds to control for manifest error of interpretation by lower courts.37 Section 3 is the core provisions of the Human Rights Act, but is both imprecise and difficult to implement, as shown by a decision of the House of Lords, R. v. A.(Brown, 2000)

This shows risks to judges when they make use of Section 3. The risks faced by judges in their role as interpreters of the law were evident in that case. This decision was one of the most controversial made under the Human Rights Act. In this case, an individual was accused of rape. In his defense, he invoked the consent of the victim.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 limits the opportunities to question the victim about his sexual behavior when the defense invokes his consent (this measure is known as the rape shield). However, the defendant believed that this provision violates Article 6 of the European Convention on Human Rights, and invites the Lords to interpret section 41 in a way that is absolutely compatible with the Convention.

Application of Law under different scenarios

The majority of Lords approves this argument, but two visions of the interpretation can be drawn. Lord Steyn has a vision having very "robust" interpretation. The duty to interpret Section 3 is a strong obligation. It applies even if there is no ambiguity in language. The White Paper is clear when it states that the obligation goes beyond the rule that allows courts to consider the Convention to resolve ambiguity.

The drafters had the model of Section 6 of the New Zealand Bill of Rights Act 1990, but preferred stronger language. Under ordinary methods of interpretation, a court can distinguish the words of a statute to avoid absurd consequences; Section 3 goes much further. Lord Steyn gives the judges a very important role, despite the consequences, as in R. v. A. Lord Hope had a more conservative role of the judge: "compatibility with the Convention rights is the only guiding principle. (Buxton, 2009)

This is the major objective of this rule. But this is only a rule of interpretation and it does not empower judges to legislate. Compatibility should be found that where possible, and it is not possible where the law contains provisions that contradict the sense that the law can have if it is interpreted consistently.

Early on, the leading English theorists had predicted that, under the influence of Community law and European law on human rights, the English Lords would acquire the power of constitutional review of legislation directly from Parliament (primary legislation) they could use "more freely". It appears that the incorporation of the European Convention on Human Rights into domestic law and jurisprudence that has developed have contributed to a kind of acclimatization of the British legal system while retaining its characteristics.

It is particularly noteworthy that the relative strengths of the established powers have not been destroyed by this novelty. Conversely, it was maintained in an overall goal of balance.

In general, the refutation of the two ideas led starting to recognize that far from abolishing centuries of common law already founders of realism of the judges, the new Supreme Court could well reinforce this trend by facilitating which may sometimes be a complex argument, which showed such flexibility supreme judges necessarily constrained by the institutional front.

In other words, one can form the hypothesis that the independence of the judiciary strengthened by the constitutional reform will have a liberating effect on the reasoning of the judge on British constitution and therefore the realism that he can show while coming up with his interpretation of the law.

To understand the Human Rights Act, it is necessary to analyze the context in which reform is. This is the unwritten constitution of a Parliament, as the saying goes," it can do everything except change a man into a woman," and therefore can not be impeded or denied. This doctrine of parliamentary sovereignty is likely to affect the efficiency of the same Bill of Rights, and a compromise must be found to ensure the protection of human rights.(Cross, 2004)

Judges are therefore at the center of the Human Rights Act, and play a major role in protecting human rights, which is not a great revolution in common law countries. However, the risk of politicisation of judges was denounced during the debate on the Bill of Rights. Of course, judges can set aside a law they consider incompatible with the Convention.

But the statutory authority to interpret laws consistently with the Convention can result in a distortion of the meaning of the law, as shown in R. v. A. It is therefore a potentially far more dangerous power to parliamentary sovereignty that the declaration of incompatibility. This paradox is difficult to understand, and it leads individuals to damaging legal essence and creating uncertainty.

It can be seen in this form of care associated with the increase of power of this magnitude, the realism that British judges are accustomed to. It is also reminiscent of the trust to which A. V. Dicey was referring to prefer a system of parliamentary supremacy unchanged to a modified system incorporating such a new bill of rights or even a fully codified constitution: the specificity of the "constitution" British would obviate all risks .

This classic design, now surpassed by the recent reforms, is nevertheless something that echoes a more accurate representation of the institutional role of the common law, a pillar of the British state.

It also explains that proponents of evolution of the British constitution, which the judges themselves have preferred the common law as a source of new powers relating to the incorporation of new standards such as the rights of the European Convention and completeness of Community law. In this way, they guaranteed against risks since relying on the contents of the common law, they did invoke the institutional foundations of the legal and political system.(Harris, 2002)

Conclusion

The original idea of ​​this is that Coke has largely contributed to establish itself as the British legal tradition or culture: all the solutions already exist. Therefore, the common law transcends the powers conferred in that it follows from the materiality of an objective reality. 

The same arguments lead to understand that the realism of a British constitutional judge is not only an opportunity offered to him on the occasion of his jurisprudential work, but a practical necessity in accordance with its old identity as well as its contemporary evolution.(Shell, 2007)

The neutralization of the two prior assumptions about the realism of British constitutional judge can put forward a new proposal that the creation of a Supreme Court of the United Kingdom sets the stage for a reformed realism. Reform is the term used about the constitutional amendments introduced in the UK by the Act of 2005. It should be observed the use of that term in that it indicates a reshaping of the relationship between the established powers.

This fitness is a relatively recent line of cases if it is related to time along the common law. It is to assert the independence of the judiciary from the other two powers, legislative and executive branches. It occurred including the cumulative effect of increased tension between the established powers and the incorporation of the European Convention on Human Rights by the Human Rights Act 1998 (HRA).