help needed with some constitutional law questions!!

Whilst I agree wth the principle that incorporation of the convention in English law through the HRA had the purpose and effect of making domestic courts recognise the rights enumerated under the convention - I don't beleive repeal of the HRA would necessarily take us out of the jursidiction of the European COURT of Human Rights.

Even with a Bill of Rights that is stronger (or even weaker) than the HRA - there is no reason why we couldn't STILL be subject to the rights contained in the European Convention as a minimum and no reason why appeal cases wouldn't or couldn't eventually finish up in the European Court of Human Rights.

I think the reaction in Europe would be more about the principle that we're deciding the collective rights aren't "good enough" for us. If we were to withdraw from the treaty - then that would be even more contentious.

If w

Reply 22

Fireman John

Weakness - Parliament is supreme - however, where are the checks and balnces; the seperation of powers? Consider the role of the Lord Chancellor - Head of the judiciary, a memeber of the executive and, as a cabinet minister a member of the legislature

That has changed now...hasn't it?

Reply 23

As far as I am aware it has changed yet... in fact, a cursory look at the DCA (- formerly the Lord Chancellors Dept.) website (http://www.dca.gov.uk/dept/changprog/member_falconer.htm) - this shows that he is still a Government minister, obviously a memeber of the Lords, and, through his role as head of the DCA - head of the Judiciary... So my interpretaation is - it hasn't changed YET.

Reply 24

Lewisy-boy

11

I thought they renamed his post as a sham... or did I get it mixed up.

Reply 25

They renamed the department (from Lord Chancellor's dept to Department for Constitutional Affairs) to incorporate the wider role and remit that his department was given. As for his title - no, that remains. As far as I am aware, the HoL is still resisting the abolition of the Lord Chancellor's post - and from what I've been reading today, in addition to what I have interpreted on the DCA website, he does still maintain a hand in all 3 branches.

I've just recieved my assignment question for constitutional - one from a choice of two - and both are quite meaty subjects. One asks you to discuss the effect of the recent constitutional reforms in nature and extent on the seperation of powers in the UK and the other asks for discussion on the importance of judicial independence from other branches of the government. I'm spoilt for choice!!!

I like the last one... especially in light of todays High Court ruling in favour of the Fire Brigades Union on Co-Responding. The government are intent on making the fire service attend medical emergencies as a sort of "second rate ambulance service" - if someone is having a heart attack, or they've been shot, or stabbed or something such like and there's no ambulance they'll send a fire engine... but who attends the house fire or the road accident should one come in whilst we're doing an ambulance job? And further to that - how "suitable for the role" are firefighters - the level of training required, the dangers of having someone who has one minute been crawling around in a derelict property used by vagrants, full of human exrement, vermin and used hypodermics etc and then the next minute being called to tend to open wounds???... Anyway - the High Court has backed the firefighters who are arguing against this so called "modernisation". And that's a prime example of the importance of inependence and impartiality within the judiciary... Sadly - this will probably end up going all the way to the HoL and with the lack of a distinct seperation of powers - well, the argument is - the unthinkable could happen - political interference... I like question 2 - but I also like question 1!!!

Reply 26

Aah.. I just thought the Constitutional Reform Bill 2003 had separated the powers more fairly.

Reply 27

http://www.dca.gov.uk/dept/doinglawdiffacc.pdf

Last paragraph - Page 5.... Serenity, it appears you're right - I'll find out more on Thursday night - I've got my second lecture on Constitutional and I'll make a special not of confirming this.

Reply 28

Ethereal

19

He's still a government appointee even if not a government minister. As it is still a political post, it is still subject to the same weaknesses.

Reply 29

I agree, Ethereal - however, he is apprently no longer head of the judiciary (now the Lord Chief Justice), no longer sits as a judge and I'm sure I've read somewhere that he doesn't participate in HoL legislative functions. That all being true, then it would appear (at least at face value) that his power is vested only through the EXECUTIVE branch. It does seem rather half hearted though and there are no clear demarcations - to all intents and purposes, reading his "bio" section on the DCA website it still reads as though he has vested power in all three branches.

Having said that, even in the US, which is considered the model of seperation of powers/checks & balances systems, the executive appoints the judciary - so his role within the executive is perhaps not too far removed from that. I suppose the lions share of the confusion comes from the fact that they have so far retained the title "Lord Chancellor".

I have to say that this switch in leader passed with very little fuss. I don't recall anything back in April - but then, I suppose the domestic terror raids, Iraq and Afghanistan has rather dominated the media.

Reply 30

Fireman John

http://www.dca.gov.uk/dept/doinglawdiffacc.pdf

Last paragraph - Page 5.... Serenity, it appears you're right - I'll find out more on Thursday night - I've got my second lecture on Constitutional and I'll make a special not of confirming this.

AS Law isn't completely pointless then :p:

Reply 31

Ethereal

He's still a government appointee even if not a government minister. As it is still a political post, it is still subject to the same weaknesses.

Who are you referring to: Lord Chancellor or LCJ?

Reply 32

Both are... But I think I missed that in Ethereal's post - totally misinterpreted the point he was making - he is no doubt referring to the LCJ. And if that IS the case, then the same weakness is true of the US - The President appoints the supreme court justices. And I admit, there is a weakness with ANY political appointment to a branch that is going to act as a check/balance!

Reply 33

Fireman John

Both are... But I think I missed that in Ethereal's post - totally misinterpreted the point he was making - he is no doubt referring to the LCJ. And if that IS the case, then the same weakness is true of the US - The President appoints the supreme court justices. And I admit, there is a weakness with ANY political appointment to a branch that is going to act as a check/balance!

But the LCJ is appointed by the Queen..Not Tony Blair..

Reply 34

I'm under the (possibly mistaken) impression that the queen just "approves" in her role as constitutional monarch... she doesnt appoint - I believe that rests with the DCA to do the appointing, the Queen simply gives it her figurative approval. As a constitutional monarch her role is more "ceremonial" than authoritative... her role in this is nothing more than a "rubber stamp".

**possibly also worth me emphasising, Serenity, that the "executive" (and apologies if this isn't a point necessary to make) isn't JUST Tony Blair, i.e. the Prime Minister - the term executive also includes the functional departments of governement - such as the DCA.

Reply 35

How did we manage without the Internet and Google!!!!?

http://www.judiciary.gov.uk/about_judiciary/roles_types_jurisdiction/lord_chief_justice/index.htm

Reply 36

L i b

19

Fireman John

However, I think there is a principle at stake and it would be interesting to see EC reaction should we decide that the "rights" afforded by Europe aren't good enough for us...

Well, to be fair, the ECHR is a largely Anglicanised view of human rights.

Lewis-HuStuJCR

Fetters on parliamentary sovereignty via the European Communities Act 1972 and the HRA 1998 but are they true fetters since parliament could, theoretically anwya, revoke them at any time.

Yes, an actual thing that blows the idea of parliamentary sovereignty completely out of the water however is the effect of the entrenched provisions of the Acts of Union. Parliament is not voluntarily bound by them and cannot alter or repeal them.

I've been banging on at this point for years, but still English law students seem to be stuck in Dicey's logical timewarp.

Reply 37

Lewisy-boy

11

The USA is the worst system for it ... if the party in power changes suddenly there is an influx of supreme court judges who are conveniently pro their policies!!

Reply 38