Public Law Essay Example | Topics and Well Written Essays - 750 words - 1

Public Law - Essay Example Therefore, section 4 attains its aims via political and not legal means through section 10 that allows the government to undertake amendment of legislation sans full approval of the legislature. In this case, a remedial order can be made only following a declaration of compatibility or similar European court findings with every appeal being completed or renounced expressly. Section 4 will allow a declaration of incompatibility by the court if, by chance, it is satisfied that its provisions do not match well to the rights convention (Clements, 2008: p21). Section 3 makes a requirement that courts should interpret the legislation as being compatible with the rights convention when and where possible. While the declaration of incompatibility is a last resort measure, there are cases where the court’s interpretation may assume administrative powers that, ordinarily, it would not possess with consequences that the court is not best placed to make a consideration (Barnett, 2009: p61 ). This meaning departs significantly from an Act of Parliament’s fundamental feature that it is likely to have broken the boundary between amendment and interpretation. The statute’s thrust is essential, especially since going against this thrust needs legislative power that courts of law do not possess. In the case of A v. Ministry of Justice, a declaration of incompatibility following under the 4th Section is the appropriate remedy. The power of a judge to issue a declaration of incompatibility can allow a judge to avoid becoming involved in issues of sensitive public interests (Mwalimu, 2010: p13). Declarations of incompatibility are optional and, in this case, the court needs to choose whether to use it or not according to their discretion. The judge can use the declaration of incompatibility if a point has been identified, as well as fully argued, at a hearing that was appointed for the purpose. The judge can also choose not to use the declaration of incompatibil ity unless it becomes appropriate for the incompatibility to be formally recorded via a declaration. Finally, the judges can also issue a declaration that serves a legislative purpose. It should also provide for a basis, for a crown minister, to consider whether compelling reasons exist to amend the legislation (Mwalimu, 2010: p14). In the case of A v. Justice Ministry, the judge may also find it unnecessary to give a declaration of incompatibility since the Secretary of State had already accepted the domestic law as being incompatible with the rights convention. In this case, making another declaration of incompatibility would exert unnecessary pressure to amend legislation on the parliament. The power to make a declaration of incompatibility with regards to human rights is only likely to be available to judges of the High Court. Judges must ensure that any declaration does not make any difference to the case at hand as the High Court will still have to use the legislation (Elliott & Thomas, 2011: p72). The declaration of incompatibility must also not make differences to any cases, which will occur in the future since the legislation will have to remain valid. Finally, the judg