Creating an effective conclusion 126.96.36.199: further guidance and examples
Presentation A: Has the Human Rights Act 1998 eroded Parliamentary sovereignty?
To wrap things up, I have demonstrated today that there has been some impact on Dicey’s traditional definition of Parliamentary sovereignty. There are some constraints upon the ability of Parliament to make or unmake any law that it chooses due to the requirement that a statement of compatibility must be attached to each new enactment and it therefore follows that there is a competing body that, at least, has a significant influence on the content of legislation. However, as this situation was facilitated by the enactment of the Human Rights Act 1998, it can only be assumed that these changes are a reflection of what Parliament desires so it does not seem reasonable to view them as an erosion of sovereignty but to see them as the operation of sovereignty in action.
In conclusion, it is clear that the Human Rights Act has eroded sovereignty. Parliament’s freedom to legislate as it chooses without interference from any other body has been altered and it is now unable to make any decision on the content of legislation without at least taking Convention rights into account. The interpretive powers of the courts can alter the meaning of legislation even if it is clear that this is contrary to the intention of the legislature. However, before we conclude that Dicey would be turning in his grave at this dramatic erosion of his view of sovereignty, we must remember that the Human Rights Act 1998 itself is only a piece of legislation. Thus, if the situation that it created was no longer to Parliament’s liking, it could be repealed and the traditional approach to sovereignty reinstated. As such, Parliament is, and will always remain, the ultimate sovereign.
Presentation B: The right to silence
It seems, then, that we have an anomalous situation with regards to the right to silence. The legislature clearly intended to limit this right by allowing an adverse impact to be drawn from the defendant’s silence but the courts have interpreted this to exclude situations in which a defendant’s legal representative reads a prepared statement thus rendering the provision entirely ineffective if the defendant and his solicitor choose to negate it in this way. It seems that the legislature and the courts are in conflict in this area of law which suggests that the position should be reviewed as a matter of urgency.
As we have seen, the legislation aimed to limit the instances in which a defendant could remain silent in the face of police questioning by ensuring that this would be brought to the attention of the court. There were sound reasons for this: a guilty person should not be able to hide behind silence to avoid the consequences of his actions and an innocent person should speak out so that he can be eliminated from the police enquiry so that the true offender can be found. It is in the interests of society that the police must have sufficient powers to investigate offences and the law should reflect this by ensuring that all persons must cooperate fully by answering questions put to them by the police. There is so much to favour this position that this is surely an instance in which the rights of the suspect should be trumped by the interests of society.