when judicial make law
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Answer:
The Human Rights Act 1998 came into force for almost twelve years and it was drafted in response to years of debate about whether the United Kingdom should introduce a bill of rights and if so, what kind. The Act protects human rights and civil liberties in the UK; therefore, the Act has brought rights home. However, it is necessary to consider whether its legal form serves the purpose for which the Act was enacted i.e. to create more efficient human rights culture. Therefore, to assess the impact of the Human Rights Act 1998 on Doctrine of Binding Precedent a number of questions must be addressed such as the status of the decisions of the European Court of Human Rights (ECtHR), whether the new Act has remedied the deficiencies in the traditional English Legal System and created identifiable right based culture in UK and whether the Act significantly widened the power of the judges in the judicial law- making.
Therefore, it can be said undoubtedly that the Human Rights Act 1998 has created a clearer and more identifiable human rights' culture in United Kingdom. The Act has widened the power of the judiciary in interpreting legislation compatible with the human rights norms, but to preserve the doctrine of Parliamentary sovereignty, judges play a limited role in judicial law making because judges have no power to nullify the primary legislation even if that legislation is not compatible with the fundamental human rights. Although there are few areas where judges have taken the bold approach and taken the decision in line with the Convention rights, but in fact, the courts' new powers under ss.3 and 4 of the Act is limited in the sense that the courts are only under a duty to consider whether such legislation is compatible with that of Convention rights or not. Precisely, the courts are under a duty to assess the necessity and proportionality of such provisions - and to issue declarations of incompatibility, by virtue of s.4 of the Act.
In conclusion, it appeared that the Human Rights Act has widened the power of the judges in the adjudicative process by "taking into account" Strasbourg jurisprudence when considering a Convention right. The HRA provides judges the opportunity to rework in the existing judicial practice in line with Convention rights and the court can now apply more coherent and principled system of adjudicating on human rights dispute. Unlike the position under European Community law, s.2(1) does not enjoin the court to place any particular weight on Strasbourg cases, therefore, the English courts are not obliged to apply Strasbourg cases strictly as precedent. Therefore, the Act has not radically altered the courts' role as judges and they are still required to work within the hierarchic structure of the common law.