2012. évi 2. szám - Jura - Pécsi Tudományegyetem

246 Helen Xanthaki: The UK Human Rights Act: a true excuse for judicial lawmaking by the aw Lords?although UK Supreme Court judges formulate a legalposition that is carried down to all inferior courts,that legal position can change rather easily when theissue is reconsidered by virtue of another case. So,one could argue that compared to the omnipotenceof the House of Lords before 1966, the possibility ofintroducing judge made law offered to the SupremeCourt is now rather diminished.However, even before 1998, UK judges enjoyeda level of discretion that seems disproportionate tothat allowed to their European civil law counterparts.Although the UK approach to the principle of theseparation of powers prevents judges from declaringan Act obsolete or unconstitutional, the principle isnot applied strictu sensu. In the past this allowed theLord Chancellor’s participation in all three functionsof the state.And more recently UK judges have been offeredunprecedented access to manipulation of nationallegislation as a means of squeezing it within thetelos and text of EU legislation [under Marleasing]and of the HRA 12 . But this new liberty should notbe viewed narrowly. It is a similar liberty, and onus,offered to the national judges of the member statesof the EU and of the states signatory to the ECHR. Itis not special to the HRA or indeed to UK judges. Itcan be attributed to the increasing demand placed tonational judiciaries for smooth, and therefore inherentlyflexible, approximation between national andregional/international instruments resulting fromlegal globalisation.ConclusionsSo, has the approach of the Law Lords to statutoryinterpretation been radically changed by theHuman Rights? Of course not. Suggesting that theimplementation of the HRA has changed the ethosof UK statutory interpretation would disregardthe continuing prevalence of the literal rule whenthe text is clear, the exceptional use of purposiveinterpretation when the text is unclear or its applicationuncertain, the extra-ordinary use of statutoryinterpretation as a concept, and the continuingprevalence of maxims and presumptions that delimitthe scope of any judicial activism made possibleby s.3 HRA.Do judges now see themselves as legislating humanrights through their interpretation of Acts ofParliament? Only an empirical analysis of all relevantjudgements could provide a conclusive answer tothat question. From a qualitative, and thereforeinherently subjective, point of view I think not. UKjudges simply enjoy, and suffer under, the obligationto marry national laws with EU legislation and theECHR as expressed by the HRA.But is this not a privilege worth offering to ourjudges? Would the alternative not condemn theUK legal system to the chaotic uncertainty of anuncontrolled and dangerous series of implied repealscaused by inconsistencies between previouslegislation and the HRA? And, after all, who wouldbe called upon to pronounce these express repealsother than the same UK judges that are now accusedof judicial law making?BibliographyKavanagh,”The Elusive Divide between Interpretationand Legislation under the Human Rights Act 1998” 24 [2004]OJLS, p. 259R. Graham, “A unified theory of statutory interpretation”23 [2002] Statute Law Review, p. 91, at 134.Sir Frederick Pollock, “Essays on Jurisprudence andEthics”, 1882Lord Reid, “The Judge as Law Maker” 12 [1972] Journalof the Society of Public Teachers of Law, p. 28G. MacCallum, “Legislative Intent” in R. Summers (ed),Essays in Legal Philosophy (1968, Blackwell, Oxford), p. 237,at 240.J. van Zyl Smit, “The New Purposive Interpretation ofStatutes:HRA Section 3 after Ghaidan v Godin-Mendoza” 70(20 [2007] MLR, p. 294.F. Bennion, ‘A Human Rights Act Provision Now inForce’ 163 JP 164.P. Sales and B. Hooper,”Proportionality and the Formof Law” 119 [2003] LQR, p. 427.Stock v. Frank Jones (Tipton) Ltd [1978] ICR 347, at 354;Bulmer Ltd v. Bollinger [1974] Ch 401, at 425.R (McCann) v. Crown Court at Manchester [2003] 1 AC787, at §16-18.Learned Hand J in Cabell v. Markham (1945) 148 F 2d 737,at 739; Lord Bingham in R (Quintavalle) v. Secretary of State forHealth [2003] 2 AC 687, at §8; Lord Hoffmann in ICS v. WestBromwich Building Society [1998] 1 WLR 896, at p.913; Wilsonv. First County Trust (No. 2), at §114-117.Magor and StMellons Rural District Council v Newport[1952] AC189, 191 per Lord Simonds.River Wear Commissioners v. Adamson (1877) 2 AC 743, at763, per Lord Blackburn; R (Westminster CC) v. National AsylumService [2002] 1 WLR 2956, at §5, per Lord Steyn.See Editorial, “Legislative Intent”, Statute Law Review29(2), p. ii; Black-Clawson International Ltd v. PapierwerkeWaldhof-Aschaffenburg AG [1975] AC 591, per Lord Reid; R v.Secretary of State for the Environment, Transport & the Regions,ex parte Spath Holme Ltd [2001] 2 AC 349, at 395, per Lord Nicholls;Wilson v. First County Trust (No. 2) [2004] 1 AC 816, at§111, per Lord Hope.Rights BroughtHome, Cm3782 (1997) para 2.7Notes1A. Kavanagh,”The Elusive Divide between Interpretationand Legislation under the Human Rights Act 1998” 24[2004] OJLS, p. 259, at 279-282.2R. Graham, “A unified theory of statutory interpretation”23 [2002] Statute Law Review, p. 91, at 134.3Sir Frederick Pollock ‘Essays on Jurisprudence andEthics’, 1882, p. 85; Lord Reid, “The Judge as Law Maker” 12[1972] Journal of the Society of Public Teachers of Law, p. 28; Stockv. Frank Jones (Tipton) Ltd [1978] ICR 347, at 354; Bulmer Ltd v.Bollinger [1974] Ch 401, at 425.JURA 2012/2.