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Monday, May 15, 2006

Fighting for human rights

Today's Guardian contains a balanced and lucid defence of the Human Rights Act against opportunistic politicians who, having passed it in the first place, now seek to use it to distract from their own failings. Marcel Berlins argues that the Act is increasingly being made a scapegoat for government incompetence, maladministration and badly drafted legislation.

This passage goes to the heart of the issue:

The government usually blames the judges and is looking for ways to negate decisions under the Human Rights Act which it doesn't like. Contrary to Tony Blair's ignorant assertion, the courts do not have the power to strike down a law passed by parliament. All they can do is rule that it is incompatible with the act. Parliament would be expected to pay heed to the judges' conclusion; but it doesn't have to. It is sovereign, which also means that it can pass a law which has the effect of overturning the decision of a court.

Those who argue that the soverignty of Parliament is being undermined by the Act should take note. Judges interpret and enforce Parliamentary law, it is not they or the tools they are given by MPs which are at fault, but the inconsistent and illiberal acts of politicians.
Here, here!
Section 4 of the Human Rights Act makes it clear that a declaration of incompatibility is all that can be issued when the legislation is primary (either an Act of Parliament or an Order in Council).
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