Statutory interpretation and human rights
Statutory interpretation and human rights1
Rt. Hon. Lady Justice Arden, DBE2
Introduction I am greatly privileged to be asked to give this address to such a distinguished gathering of legislative counsel from around the world. I have been asked to speak about human rights and I will treat my title as extending to constitutional rights. I will concentrate my remarks on the statutory interpretation of human or constitutional rights. I do not simply mean the interpretation of statutes which legislate for human rights. I also mean those situations where it is said that a statute dealing with some other subject-matter violates a constitutional or human right. For a judge to address this subject in this forum might be said to be like looking down the wrong end of a microscope and seeing the clinician or microbiologist or whomever is using the telescope. But that metaphor must not be taken too far. Specimens seen under a microscope are usually put on a slide and extracted from all other matter. In statutory interpretation words have to be examined in their context. To find the meaning of even such simple words as “the cat sat on the mat” requires some basic common understanding of the laws of gravity. The determination of a question of statutory interpretation is in general an exercise in attributing a meaning where it is not obvious and has become a source of dispute between two or more parties. (I should explain that in the UK we do not have any system whereby the courts can give purely advisory opinions.) Yesterday you discussed the intention of Parliament. Speaking entirely for myself, I would be very cautious about describing the task for the judge as one of ascertaining the intention of Parliament, since I am not clear whose intention I would then be seeking or where I would find it if not in the words used. The evidence that is available to the judge is not in general that of the intention of Parliament but that of the Government or the promoters of the Bill or of law reform agencies and it does not follow that the intention of Parliament was their intention at all. What then is the role of judges? Is their task the purely mechanical task of reading the words legislative counsel have drafted and Parliament has passed? The answer to that question is no, for many reasons. I could of course devote all my time to discussing that question. However, there is so much else that I want to cover so it is sufficient for the purposes of this address if I quote to you what is said about the role of judges in the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government. These Principles were agreed by the Law Ministers of the Commonwealth and endorsed by the Commonwealth Heads of Government Meeting in Abuja, Nigeria, in December 2003. These Principles state: Independence of the Judiciary An honest, impartial and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice. The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country… (c) Judicial Review Best democratic principles require that the actions of government are open to scrutiny by the courts, to ensure that decisions taken comply with the Constitution, with relevant statutes and other law, including the law relating to the principles of natural justice. 1
Paper presented to the Commonwealth Association of Legislative Counsel, 9 September 2005. Member of the Court of Appeal of England & Wales.
Statutory interpretation and human rights
So the time when judges come into contact with human rights and statute law together is when they are being asked to interpret a constitutional provision or human right or when they are being...
General view- the function of parliament is to create law, but the role of judiciary is to apply the law.
Montesquieu theory of separation of powers: the government has 3 different functions – legislative, executive and judicial – and these functions should be kept apart in order to prevent the centralisation of too much power.
* Thus judiciary should only apply the laws that are made by the government, but as government cannot predict all the situations that may arise and the generality when making laws, statutoryinterpretation by the judges plays a very important role.
One of the main requirements of the statues: to be sufficiently general so that they can be applied in a variety of situations.
* This can only be achieved at the expense of clarity.
* Thus it can only be made certain through judicial interpretation, inevitably leading to judges creating the law through determining the meaning of the words and effect to be given.
There are judges that adopt the restrictive view as Lord Simonds (Magor and St Mellons v Newport Corporation (1951)) - it is the duty of the court to find out the intention of the parliament; to interpret the words that the legislature has used.
Some adopt more permissive approach, such as Lord Denning ( Magor and St Mellons v Newport Corporation (1950)) : “we do not sit here to pull the language of parliament and of ministers to...
...The incorporation of The European Convention of HumanRights (ECHR) into the domestic law under The HumanRights Act 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Humanrights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of HumanRights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of HumanRights into the ambiguously worded...
...Humanrights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of humanright and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of HumanRights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for HumanRights Act in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not incorporate into domestic law, UK...
This process is used by judges in the courts when there is a dispute or being uncertain over the meaning of words or phrases in an Act of Parliament or piece of delegated legislation. The courts role is to find out how Parliament intended the law to apply and carry this out. The interpretation may form a precedent for future cases.
Statutoryinterpretation can become a problem due to:
The complexity of the English language a word may have several meaning, which can lead to ambiguity.
The meanings of words can change over periods of time.
The legislation may have been made very quickly in response to public reaction and the wording may not be as precise as it should be, for example the Dangerous Dogs Act 1991.
The original bill may contain errors in the drafting. Parliament may not notice this, especially if there are many amendments during the bill’s passage through all its parliamentary stage.
Judges can use three main rules in interpretation Acts of Parliament:
The literal rule
The golden rule
The mischief rule
These are not rules as such, but they are different ways or approaching the interpretation of a statute. Each individual judge decides which particular rule to use in particular cases.
The Literal Rule
This rule is used as it is the best way to determine the intention of Parliament, when interpreting a statute, is to give the words used...
...1. “The HumanRights Act has revolutionised the way in which judges interpret statutes.”
1. From the statement, what do you understand? Critically give your own definition/ view on the statement
2. Briefly explain history of HRA and SI.
3. In your own view, what are the connections between HRA and SI
1. How HRA influence Judge interpret statutes
a. tools- SI
b. Consequences - Judges make law
2. The effect of SI
a. s3 HRA
i. How it influence parliamentary supremacy
ii. How SI violated SOP.
3. Where is the validity of HRA
a. s4 (declaration of incompability)
b. Parliamentary supremacy
4. According to validity of HRA, where is humanrights, why citizen will seek ECtHR help instead of UK Court(HRA 1998).
5. Current policy (Updates)
a. Current rights( How expandable of rights given by HRA 1998)
2. own view
The question statement suggests that the HumanRights has fundamentally changed the way judges interpret statutes. Though it admittedly has altered the way in...
We will deal with each of these in turn, with reference to international legal instruments and bodies. We will observe first of all how the rights of individuals, although falling outside the province of international law as it was conceived in the1600s, began to seep into the framework of international legal rules over the centuries, eventually coming to prominence during the 'humanrights era' that followed the end of the Second World War. We will consider secondly the various mechanisms that have been put in place by the international community in order to deal with the enforcement and observance of individual rights enshrined in international legal instruments. Lastly, we will critically assess the claim that questions about individual rights should be the sole concern of domestic legal systems.
The scholars who laid the intellectual foundations of international law in the Western world, like Hugo Grotius (1625) and John Locke (1690), all stressed in their writings that legal systems, be they domestic or international, were founded in natural law and commonly accepted standards of (Christian) morality. It may seem surprising, therefore, that for centuries the rights of individuals played no significant role in the framework of international law. International law, as the name suggests, was the body of legal rules governing the relations...
...The HumanRights Act
HumanRights are those rights that are deemed to belong to all individuals by virtue of their humanity 1. Previously, these rights were referred to as “the rights of man” or natural rights. Because of this, humanrights are ascribed to all humanity regardless of their citizenship or nationality. Thehumanrights doctrine can, in this respect, come into direct conflict with other doctrines of the sovereignty of other governments in the world, and the law, because of the universality that has led to the pursuit of the agenda of humanrights at stages of international co-operation in the era of post war2.
The HumanRights Act has elicited a lot of divided opinion. Debate has risen in Britain as whether to repeal the HumanRights Act, (hereinafter referred to as the HRA), extend it or whether it should be replaced altogether with the British HumanRights (Hereinafter referred to BHR)3. Repealing the HRA refers to abolishing or evoking the act altogether while extending it will imply that, this Act could stay on longer without being repealed or cancelled by the British Government. In Britain, some fundamental individual freedoms are today protected by the...
...that support the fulfilment of rights and choices of individuals with dementia while minimising risk of harm
RIGHTSHumanrights; independence; respect; freedom to do what I want; to protect myself and my property; to be heard; to vote; to express my sexuality; right to an education/work.
RISK Danger; part of life; unacceptable or acceptable; who’s risk? risky activities; risk of harm; injury; protection.
CHOICE Independence; ‘my life’; variety of; priorities; making the right choice; making the wrong choice; what to eat; what to wear; relationships; place to live.
HARM Danger; pain; intentional or unintentional; long lasting or short lasting; reputation; sense of identity/safety.
ABUSE Physical; emotional; ﬁnancial; sexual; neglect; law; vulnerable; prison; shocking.
TRUST Friendship; feeling – safe, secure, positive; enabling; back up; care; love. Money in Trust
DIGNITY Free from embarrassment; acknowledged as a human being; a way of being/carrying oneself; sense of self; lack of dignity – abuse, damage, pain, fear
1.1 Explain the impact of key legislation that relates to fulfilment of rights and choices and the minimising of risk of harm for an individual with dementia
HumanRights Act of 1998 - This Act became law on the 9th November 1998 and mostly came into force on 2 October 2000. Its aim is to...