A Note From the SLS 2016 Conference at Oxford.
Every student of law will know about the ‘sources of law’: statues, judicial reasoning, European legislation and cases. They will be familiar with the cannons of statutory interpretation, the so called Literal, Golden and Mischief rules, purposive and contextual interpretation.
All students will have studied how under our constitutional settlement, the judges interpret and apply statutes such as to articulate the will of the democratically legitimated Parliament, (the supreme law making body), how the judges attempt to discern the will of Parliament reconciling that with their judicial obligation to serve justice and the principles of legality.
It is apparent that modern law-making in common law jurisdictions comes from a constant recurring argument and debate between Parliament, the judges and legal academics. In this spirit of a debate the conference offered a distinguished panel vividly embodying the dynamic of the ‘law making’ conversation. On the panel chaired by Lady Justice Arden the speakers were Lord Justice Sales, Professor John Bell from Cambridge and Daniel Greenberg a former Parliamentary Counsel.
Filed under Carl Schmitt, Contextual Interpretation, Democracy, Giorgio Agamben State of Exception, Hansard, Legal interpretation, Parliamentary sovereignty, Pepper v Hart, Rule of Law, Society of Legal Scholars, Statutory interpretation, Uncategorized
The forthcoming election campaign in UK may well include promises by the Conservative Party to withdraw from the European Convention on Human Rights (‘ECHR’) should the party win the next election.
The original proposals to withdraw from the Convention were launched at the Conservative Party conference in October 2014 but instantly denounced as legally illiterate and based on nothing more that fundamentally flawed misunderstanding of human rights jurisprudence.
In short the proposals never made sense, were full of legal howlers and were not supported by any credible legal authority. Moreover the proposals disregarded the implications for the constitutional structure of United Kingdom.
It now transpires that not only are the proposals legally illiterate but there is in fact no empirical evidence to suggest that UK has been subject of especially harsh treatment by the European Court of Human Rights (‘The Strasburg Court’).
On Friday 3rd October the Conservatives published a paper ironically but presumably unintentionally, entitled ‘Protecting Human Rights in the UK’ . The aim of the proposal set out in the paper is to restore “common sense” and to “put Britain first” in relation to the legal protection of human rights.
As we shall see, the somewhat ill thought out proposal, seemingly largely driven by fear of increasing popularity of the UKIP party, seeks to restore the UK Parliament to full vigour, protecting our UK laws and UK constitution from interference by the Strasbourg Court and dastardly European human rights law.
In the paper the Conservative Party sets out its plans for the next Parliament for human rights law in UK. They propose:-
- to repeal the Human Rights Act 1998,
- incorporate the European Convention on Human Rights into primary legislation, and
- to pass a new British Bill of Rights to set out a “proper balance between rights and responsibilities”.
Filed under Democracy, European Convention on Human Rights, European Court of Human Rights, Ghaidan v Gobin-Mendoza, Human Rights Act 1989, Law, Northampton, Parliamentary sovereignty, Protecting Human Rights in UK, Rule of Law, Uncategorized, Vinter and Others v United Kingdom