The enactment of the EC Treaty could be seen as the overruling decider between the role of Parliament and the judiciary. Taking the question set, to its extreme level, it can be argued that the judiciary are merely adjudicators for the European court whereby Parliament had surrendered its (sovereign) right to legislate. By incorporating The European Communities Act 1972 to give direct effect of the Treaty of Rome which in effect incorporates legislation and directive into the UK system. By s2 (1) it is held that both the Treaty and Community law was to hold legal effect in the UK.
More importantly, s3 (ECA 1972) says that, the treaties and legislation is seen as a question of law which is either interpreted by the European Court of Justice in Luxembourg but if decided by the Courts (UK) then it had to be decided in accordance with the ECR decisions. Thus, in the series of Factortame cases, regarding Spanish fishermen setting up UK companies in order to maximize fishing quota. The question was whether the Merchant Shipping Act could be suspended because of infringement on EC law.
Subsequently in Factortame (3), the ECJ supported the fishermen and hence, the Act was suspended. The Human Rights Act 1998 is the biggest change in the UK law. Arguable, the shift of power will allow judges greater power, who before were not able to strike down statutes passed by UK Parliament, but will have to interpret them so as to be compatible with the convention. If this is considered impossible by the judges then a judge can declare a law incompatible with the convention. Here it can be said that Parliament will have a new fast track procedure by which such law can be amended.
With this notion there will be cases in which the judge will have to tread a fine line between the interest of the community, as defined by Parliament, and those of the individual who might be bringing in the human rights challenge. The question posed is who takes precedence – parliament or the judges? Claire Dyer2 purports that, parliament has safeguarded their role by drafting the Human Rights Act (1988) to ensure that the Courts cannot strike down Acts. Judges will however, be able to issue a declaration that a statute is incompatible with the European Convention.
However, the essence as displayed in the Kebliene case, said by Lord Steyn, "… it is crystal clear… Human Rights Act 1998… preserves the principle of parliamentary sovereignty. In the case of incompatibility of interpretation under s3 (1),… courts may not disappy legislation. " Could it be argued then, that the passing of the Human Rights Act would mean that Parliament will find themselves having to operate within a set of agreed minimum standards, which can be highly enforceable by UK judges?
There have been significant rulings in Strasbourg, home of the European court of human rights that has changed the UK law. For example, in the case of James Malone (1984), after a police operation that used unauthorized taps against an antique dealer, stricter controls on telephone tapping were introduced. Similarly, the Sunday Times v UK (1979) case with regards to the Thalidomide ruling lifted a high court gag on publishing damning reports on the effects of a drug on unborn children and led to reform of the contempt of court law.
(1979) Then there is the Bulger3 case (1999) case ruling whereby children charged with murder or manslaughter will not have to face the ceremony and publicity of an adult jury trial again. When the court ruled that, Jon Venebles and Robert Thompson had not received a fair trial because as juveniles they could not have understood the proceedings properly, and it was wrong for the Home Secretary, Jack Straw to decide their final sentence.
Referring back to our simplified model, one of the purest distinctions between legislator and judiciary is highlighted, the interrelationship between the two functions upheld more or less by Acts of Parliament. But clearly in hard cases a pinch of "literal" and a dash of "mischief" for the ones which reach the Court of Appeal and the House of Lords and by the elaborating test of the ratio of an earlier decision will not always suffice. The use of overruling, creating new offences are only upheld where the above has failed.
Finally, could it be argued that, being in the EC and the introduction of the Human Rights Act 1988 could be discreetly construed as a way of, Parliament passing a statute. This may acknowledge the occasional practice of the Law Lords to call the attention of Parliament to any unsatisfactory element within the law, where the judges feel they cannot change themselves.
Collins L. , European Community Law in the United Kingdom (2000) Butterworths Cracknell D. G. , Obligations: Contract Law (2001) Old Bailey Press Cracknell D.G. , Cracknell's Companion, Cases and Statutes. Torts. (2000) Old Bailey Press Cracknell D. G. , Cracknell's Companion, Cases and Statutes. Criminal Law. (2000) Old Bailey Press Evans Judith. , English and European Legal System. (2001) Old Bailey Press Feldman David. , Civil liberties and Human Rights in England and Wales. Oxford University Press. (2002) Smith and Hogan, Criminal Law, (1999) Butterworths Williams G. , A. T. H. Smith Learning the law)(2002) Sweet and Maxwell Zander M. , The Law Making Process (1999) Butterworths