Seminar 5: Human Rights Act and the Executive
04 February 2023
16:02
Reading List
• Mark Elliott and Robert Thomas, Public Law (2020, 4th edn, OUP) Chapters 6 & 19 (this
was already on reading list for seminar 2, take the opportunity to refresh your memory).
• Cabinet Office, Ministerial Code (2022) Preamble & pages 1-6 <
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm
ent_data/file/1079310/Ministerial_Code.pdf>
• https://publiclawforeveryone.com/2022/06/22/the-uks-new-bill-of-rights/
• https://www.instituteforgovernment.org.uk/blog/priti-patel-bullying-inquiry-
undermined-ministerial-code
Section 1 - Human Rights
1. Critically analyse the following paragraph
“Firstly, British judges were given the power and obligation to interpret every law
enacted by Parliament in a manner that made it consistent with the Convention, even
if by so doing they needed to stretch and alter the meaning of legislation. In effect,
the judges obtained the last say in law making. Secondly, if the judges considered that
a law could not be made consistent with the Convention even by stretching and
altering its meaning, the 1998 Act allowed them to issue a declaration of
incompatibility. This then obliged Parliament to reconsider and change the law to
make it consistent with the Convention”.
Do you agree with the argument in the paragraph? Make three points in your answer
and provide authority to support your position (this could be from your textbook,
case law that you have read, blogposts etc.)
undermined parliamentary sovereignty
-yes:courts have room to scrutinise parliament, there is an interpretive obligation,
Section 2 of the HRA currently requires UK courts to take account of ECtHR
jurisprudence in cases concerning Convention rights
Section 3: interpretation of legislation- gives judges power to interpret legislation.
Arguably gives judges power to change meanings of statutes. Key wording "so far as
it is possible to do so" goes against this argument. Judges do not have absolute
power.
Section 4: through this section judges arguably have the final say as they can issue a
declaration of incompatibility; however, parliament is not legally obligated to do
anything about it; parliament has the final say and there is only legal pressure.
04 February 2023
16:02
Reading List
• Mark Elliott and Robert Thomas, Public Law (2020, 4th edn, OUP) Chapters 6 & 19 (this
was already on reading list for seminar 2, take the opportunity to refresh your memory).
• Cabinet Office, Ministerial Code (2022) Preamble & pages 1-6 <
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachm
ent_data/file/1079310/Ministerial_Code.pdf>
• https://publiclawforeveryone.com/2022/06/22/the-uks-new-bill-of-rights/
• https://www.instituteforgovernment.org.uk/blog/priti-patel-bullying-inquiry-
undermined-ministerial-code
Section 1 - Human Rights
1. Critically analyse the following paragraph
“Firstly, British judges were given the power and obligation to interpret every law
enacted by Parliament in a manner that made it consistent with the Convention, even
if by so doing they needed to stretch and alter the meaning of legislation. In effect,
the judges obtained the last say in law making. Secondly, if the judges considered that
a law could not be made consistent with the Convention even by stretching and
altering its meaning, the 1998 Act allowed them to issue a declaration of
incompatibility. This then obliged Parliament to reconsider and change the law to
make it consistent with the Convention”.
Do you agree with the argument in the paragraph? Make three points in your answer
and provide authority to support your position (this could be from your textbook,
case law that you have read, blogposts etc.)
undermined parliamentary sovereignty
-yes:courts have room to scrutinise parliament, there is an interpretive obligation,
Section 2 of the HRA currently requires UK courts to take account of ECtHR
jurisprudence in cases concerning Convention rights
Section 3: interpretation of legislation- gives judges power to interpret legislation.
Arguably gives judges power to change meanings of statutes. Key wording "so far as
it is possible to do so" goes against this argument. Judges do not have absolute
power.
Section 4: through this section judges arguably have the final say as they can issue a
declaration of incompatibility; however, parliament is not legally obligated to do
anything about it; parliament has the final say and there is only legal pressure.
