Sunday, June 8, 2014
JoAnne Sweeny, University of Louisville Brandeis School of Law, has posted an interesting paper on SSRN. In "Creating a More Dangerous Branch: How the United Kingdom's Human Rights Act Has Empowered the Judiciary and Changed the Way the British Government Creates Law," Sweeny argues that, by enacting the Human Rights Act in 1998, the legislature granted new powers of interpretion to the judicial branch and thereby strengthened the judicial and legislative branches at the expense of executive power. While this thesis echoes separation of powers debates in the United States, it is a relatively new development in the U.K. where the country's parliamentary form of governance has traditionally favored the executive branch's strong reign over the legislative process. It would be interesting to compare the trajectory of the post Human Rights Act changes in the U.K. with the increasing power of Germany's Constitutional Court where the Court's expanding power has developed over a several decade period.
Sweeney's abstract reads:
Power struggles between government branches are nothing new. What is new is how those struggles have recently changed in the United Kingdom as a result of the constitutional reforms enacted by Tony Blair and the Labour Party. In addition to incorporating fundamental human rights into the British legal system, the enactment of the Human Rights Act 1998 resulted in the alteration of the balance of power between the three British government branches, with the judiciary and legislature achieving substantial gains in influence and independence. An
unintentional side-effect of these changes is that the British government structure now appears to have a more American style with a stronger separation of powers. More specifically, the British legislature and judiciary have gained new powers when human rights laws are implicated, which place these branches on more equal footing with the traditionally dominant executive branch. As this article shows, when creating or altering laws that involve human rights, government branch interactions are noticeably different, and the legislature and judiciary now have more of an impact on which laws will stand the test of time.
The paper may be found online at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445533
On another note, as summer rolls around, expect our blog posts to become less frequent as all of us will be doing a bit of travelling.