CPL Seminar: 'Bringing Rigour to Fundamental Rights and Principles Reasoning'

Speaker: Dr Mikolaj Barczentewicz, University of Surrey

In the United Kingdom, fundamental rights and fundamental principles reasoning creates tensions on the frontier between law and politics, particularly between parliamentary legislation and judicial interpretation of statutes. As Lord Hoffman canonically said in Simms '[f]undamental rights cannot be overridden by general or ambiguous words' of a statute'. The problem is that aiming to interpret 'general or ambiguous' statutory wording to achieve a result consistent with fundamental rights carries a non trivial risk of violating the legislative supremacy of Parliament and the rule of law. Even an appearance of violating a statute as enacted by Parliament is highly problematic. In this paper, I propose a sketch of a solution. The proposal has two elements. Firstly, following Philip Sales, I argue that a fundamental right or principle may be taken as relevant in statutory interpretation only to the extent there was a consensus over that right or principle in the political community at the time the statute in question was enacted. Secondly, I consider how to determine the existence of such consensus over a fundamental right or principle. In doing so, I develop a method by which lawyers and judges could make empirically grounded arguments. This method provides a test – a limiting principle – that was until now lacking. As an illustration of how the proposed framework works, I consider the Supreme Court judgment in Evans v Attorney General and its critique by Richard Ekins and Christopher Forsyth.

(This seminar is part of the New Faces in Public Law series.)

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.