Interpretation of the Judiciary

INTERPRETATION OF THE JUDICIARY 1
INTERPRETATION OF THE JUDICIARY
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INTERPRETATION OF THE JUDICIARY 2
The main objective of this paper is to conduct a though evaluation of diverse opinions
as expressed by various authors about the interpretation of judiciary. The main ideas that will
be expressed in this paper are based on the current policy frameworks and defense towards the
set statutes. This will allow us have a better understanding of the multiple approaches that
can be used and also understand reforms that might occur in the future . Finally, we shall look
into the legislation process has been applied within the statutes. Finally comparisons will be
conducted to other external works to determine whether they agree with Wagner and Barth’s
argument.
Contrary to predictions that had been made before 1996 on the impact that the Human
Rights acts would have on the United Kingdom laws, a lesser negative influence was
experienced in the region. Numerous arguments have previously been proposed, describing how
the Human Rights Act would affect the criminal and civil litigations. Approximately two thirds
of these arguments have been critically discussed within House of Lords when Human Rights
Act was enacted1. Most litigations have been brought forth against the Human Rights Act, but
the chancery remained steadfast as the arguments were highly irrelevant or misconceived.
In the Anderson vs Secretary State case, the Supreme Bench concluded that it was illegal
for foreign nationals to be detained within the UK in absence of just trial as it had been dictated
within the Crime, Security, and Anti-Terrorism Act of 2001. It was argued that detaining the
foreign individuals would contravene stipulations within European Convention on Human
Rights, since it would result into discrimination on the basis of immigration/nationality of the
defendants. However, Lord Birmingham argued that the state was obligated to first of all protect
1 Tom Theuns, "Book Review: International Relations: The Legitimacy Of International Human Rights
Regimes: Legal, Political And Philosophical Perspectives", Political Studies Review, 13.3 (2015), 415-416

INTERPRETATION OF THE JUDICIARY 3
the security of its citizens2. He argued that this would be achieved by declaring the existence of
an emergency that had the potential to hamper the continuity of the country’s well-being.
However, the court lacks the appropriate powers to strike out a legislation that is defined under
the Human Rights Act3. Hence, this forced the defendants in this particular case to remain in
court indefinitely until a certain particular time when it would be proved that they are innocent.
The government was, therefore, allowed enough time to establish appropriate public safety
strategies was upheld through enacting the Control Orders for the Mitigation of Terrorism Act
2005. The new system is still being reviewed by the courts to-date.
A vital point expressed by Wagner and Barth in the entire article revolved around how
inconsistent the decisions made by the judiciary are regarding section 3 of the Human Rights
Act. However he eventually concludes that , while the courts appeared to have a more
activist approach , this has reduced over the years. The authors use the Ballinger v Ballinger
case where a fundamental change in the conventional ways of marriage were perceived as a
matter that needed to be discussed in parliament. While there are exceptions, the court do not
entirely go too far beyond the set statutes. Gerards supports the idea concluding that it is
infect possible to define what might be termed as the limiting factor while interpreting the
obligations of the courts under S.3 of the HRA.4
Despite the common ground by most of these academics , there are multiple
disagreements over their point of view on the approach used by courts in earlier cases such
2 Richard Bellamy, Political Constitutionalism And The Human Rights Act (Oxford University Press and
New York University School of Law, 2011), pp. 87-109.
3 Tom R Hickman, Constitutionalism In The United Kingdom, 2004.
4 J. H Gerards and J. W. A Fleuren, Implementation Of The European Convention On Human Rights And
Of The Judgments Of The Ecthr In National Case-Law (Cambridge: Intersentia, 2014).

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as Ghaidan. Blackwell indicates that the interpretation sought in Ghaidan provides no radical
usurpation of the intentions of the parliament over the act of vandalism. Wagner and Barth’s
approach in response to this idea appears to be more negative and demonstrates that this takes the
form of judicial vandalism. This is evident when the approach is described as bold and “an
activist approach”. During the proceedings of Ghaidan vs Godin Mendoza [2004], an intrepid
approach was adopted. The unfairness within the Rent Act 1977 was criticized by the judiciary
as the law stipulated that only a surviving wife or husband had the right to succession. However,
homosexual partners were excluded. The House of Lords argued that such would result in the
breach of a person’s Article 8 and 14 rights. The Act was viewed as though it exceeded normal
interpretation. In this case, the court had the powers to alter the abstract meaning of the Rent Act,
irrespective of the legislator’s intent to restrict a normal relationship to marriage. The need for
change was motivated by the Lord Chancellor’s declaration when the Act was being passed. He
stated that the judiciary will be needed to declare the existence of an incompatibility due to the
deliberate impact that arises from S.3 of UK’s Human Rights Act. Rather, it noted that various
limits existed such as the stipulation for courts to avoid adopting laws that contravened the
primary function of the legislature.
Another important argument made by Wagner and Barth is the approach that can be
used by courts under Section 3 of HRA with the accordance of the case law. While they agree
that case law does not always provide a clear structure , they clearly provide approaches that
need to be considered while dealing with complaints and the best way of making
interventions.The Courts primary purpose is to interpret the law as directed by the legislature.
Failure to so would create an aspect of judicial vandalism as identified by Lord Bingham in the