5.4.7.3 Human Rights Enabling Judicial Discretion

There is a deep disagreement in Britain about the validity of human rights legislation: it has been suggested that it gives too much power to the judiciary.  Melanie Phillips (who is not related to the Lord Phillips quoted above) inveighed against judicial interpretation of human rights law in her article What planet ARE judges living on?:

“human rights law has given the judges a weapon to undermine democracy, by setting up themselves rather than politicians as the people who should decide how the country should be ruled”.

In practice judges have always had the power to interpret the law (5.2.2), but human rights legislation gives them a published yardstick for doing so.  Human rights in America form part of its Constitution (the first ten Amendments), but the human rights law in Britain was introduced by politicians in 1998 as part of its undertakings under EU rules (5.3.5.4).  In neither case did the judiciary create these rights.  They can challenge the current legislature, but only in accordance with published human rights law – which can therefore be seen as a mechanism for ensuring that judges do not overreach their function under the separation of powers (5.2.8).

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