The incorporation of The European Convention of Human Rights (ECHR) into the domestic law under The Human Rights Act 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Human rights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of Human Rights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of Human Rights into the ambiguously worded statute. Neither can judges invalidate Acts of Parliament for the failure of protecting rights.
In the UK, prior to the HRA 1998, it was argued that the laws would not be passed with the purpose of specifically conferring basic human rights. Over the years, duty-imposing rules have sought to diminish the value of rights to constant erosion by the way of legislation. For example, The Contempt of Court Act 1981 and the Official Secrets Act 1989, these laws either expressly deny human rights or alternatively grant wide discretionary powers to the officials to facilitate the governing process. This authorization of the Executive’s discretion allowed the legitimate infringement of Human Rights. The judiciary is defenseless when they faced with parliamentary provision. They had to interpret the statute according to Parliament’s intention and there was no presumption in favor of Human rights, Furthermore, legislative protection was minimal when it comes to positively stipulated rights. For example, the Sex Discrimination Act 1975, Equal Pay Act 1970 and the Race Relations Act 1065.
The position of human rights is protected in the UK before the enactment of the HRA 1998 was that the rights in UK were residual in nature. Although Professor Dicey stated that the courts are the protectors of individual rights; due to the supremacy of Parliament in the UK that there is no rule of construction that judges must imply Human Rights – the courts cannot invalidate an Act of Parliament.
Sir Thomas Bingham quoted a Lord Chancellor whom in 1992 stated that “in democratic societies, fundamental Human Rights and freedoms are more than paper inspiration.” They form part of the law and it is the special provinces of judges to see that the laws undertakings are realized in the daily lives of the people.
Protection of Human Rights is, therefore, an important ingredient in the pursuit of legitimate governing. Only a government can secure the respect, trust and obedience of its people to claim legitimacy. Governments that constantly infringe Human Rights will eventually lose support of its people. The American Declaration of Independence is perhaps a testimony of this.
Today, post HRA 1998, due to the constant breach of the ECHR in the UK, it was argued that the understanding of rights was not only distorted but inconsistent as well. The inadequacy of legislative protection in the past was also exemplified when one considers the amount of cases that have gone to Strasbourg. Not surprisingly the UK have been found guilty in numerous occasions in the past for failing to take positive steps to protect basic liberties. It is evidenced in the case...
...Statutory interpretation and humanrights
Statutory interpretation and human rights1
Rt. Hon. Lady Justice Arden, DBE2
Introduction I am greatly privileged to be asked to give this address to such a distinguished gathering of legislative counsel from around the world. I have been asked to speak about humanrights and I will treat my title as extending to constitutional rights. I will concentrate my remarks on the statutory interpretation of human or constitutional rights. I do not simply mean the interpretation of statutes which legislate for humanrights. I also mean those situations where it is said that a statute dealing with some other subject-matter violates a constitutional or humanright. For a judge to address this subject in this forum might be said to be like looking down the wrong end of a microscope and seeing the clinician or microbiologist or whomever is using the telescope. But that metaphor must not be taken too far. Specimens seen under a microscope are usually put on a slide and extracted from all other matter. In statutory interpretation words have to be examined in their context. To find the meaning of even such simple words as “the cat sat on the mat” requires some basic common understanding of the laws of gravity. The determination of a question of statutory interpretation is in...
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRight Act 1998, European Convention HumanRights were not directly applied by the courts and while there were infringements of the rights enshrined in the ECHR an application have to make to the Strasbourg Court when domestic avenues had been exhausted. Therefore, HumanRight Act 1998 was incorporated in UK in 2000 to bring ECHR rights to the English law and to ensure that the public authorities have due regard for Humanrights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The HumanRight Act is the most important piece of constitutional legislation the UK has ever seen.”
However, we must also recognise that as a consequence of the incorporation of ECHR in English law, it had also led to some political tension between the Legislative and the Judiciary. Judges often being criticised that go beyond their constitutional role as a “interpreter” and hence violate the principle of parliamentary supremacy and Separation of power.
This is because the ultimate purpose of HRA was designed to give judges a mandate to ensure that legislative and executive decision making is compatible with ECHR and at...
...University of London
Common Law Reasoning and Institutions
Essay Title: ‘Although the HumanRights Act 1998 has impacted on the judicial understanding of precedent, the underlying features of the doctrine remain unchanged.’
Student Number: 090485789
Candidate Number: 54206
The HumanRights 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 humanrights 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 humanrights culture. Therefore, to assess the impact of the HumanRights Act 1998 on Doctrine of Binding Precedent a number of question must be addressed such as the status of the decisions of the European Court of HumanRights (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.
...Convention on HumanRights (ECHR) through the HumanRights Act 1998 had no influence on English Law, as the concept of rights has always been part of English Law’ it is necessary to examine English Law prior to the incorporation and then examine both the European Convention on HumanRights (ECHR) and then its incorporation by HumanRights Act 1998 (the Act). First, though, it is necessary to examine the meaning and concept of humanrights.
In examining humanrights, it is necessary to focus upon legal rights as opposed to moral rights. Legal rights are artificial, created by governments; they are particular in that they apply to those in a particular society living under a particular system; thus they are not universal; and they are alienable, in that they can be given up or modified. It is important to note that ‘rights’ are not the same as ‘needs’ or ‘desire.’ (Heather Montgomery, 2012, pp9-10,14,15). As Scruton declared ‘rights are not secured by declaring them.’ He further added that rights can be defined as freedoms. (Scruton, R. 2004 pp 18-19). Historically, humanrights are complex especially where they tend to be unwritten and in the UK it has been assumed that we are free...
...University of London
Common Law Reasoning and Institutions
“The HumanRights Act has revolutionised the way in which judges interpret statutes.”
The statute is a piece of legislature that is set out by Parliament to legislate the laws of United Kingdom to be used by the courts in legal proceedings. Though written by the Parliament, the duty to interpret and apply the statutes fall on the courts, more specifically the judges to enact the statute and interpret it to suit the proceedings. Thus in other words, the duty to interpret statutes fall within the responsibilities of the judge. To help with the interpretation of statutes, the Parliament has passed the Interpretation Act 1978, but it is of not much use as it only provides standard definitions of common provisions and not notes for interpretation. Thus, the judges have took up the responsibility to create rules of interpretation, which are not really rules but are different approach to interpret statutes which are created by Parliament. For example, the literal rule is used to interpret a statute to its literal meaning which is stated. Then we have the golden rule, which is used to interpret the statute, if meaning is construed through the literal meaning, to alter the meaning to not be absurd, as the will of Parliament. The third rule is the mischief rule, as laid down in Heydon's Case  EWHC...
...HumanRights Act 1998 has impacted on the judicial understanding of precedent
Humanrights are inalienable rights in which people are conferred with by birth. The state being the guardian of such rights have an absolute obligation to protect the humanrights. Prior to the HumanRights Act 1998, a Uk citizen who had a grievance of a violation of ahumanright, had to complain to the Euoropean Court of Humanrights in order to obtain redress. Comparatively, it can be said that by the enactment of the HumanRights Act, the rights which were protected under the European Convention of Humanrights(ECHR) were brought home, thus better protecting the humanrights within the sphere of the United Kingdom.
The HumanRights Act 1998 (the Act) came into full force on 2 October 2000. The aim of the Act is to ensure that a set of basic humanrights, which are listed in the Act, are fully respected and enforced in the UK. Once the HRA became law UK citizens had, for the first time, rights instead of liberties. The Act fundamentally changes the way the UK system of justice works, and makes public authorities more accountable...
...Humanrights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of humanright and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of HumanRights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for HumanRights Act in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not incorporate into domestic law, UK...
...The HumanRight Act 1998 is an act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.It’s aim is to “give further effect” in UK law to the right contained in the European Convention on HumanRight. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court ofHumanRight in Strasbourg. It also totally abolished the death penalty in UK law although this was not required by the Convention in force for the UK at that time.
In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg. Court and to interpet legislatron,as far as possible, in a way which is compatible with the convention.However,if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a dedaration of incompatibility. This declaration does not effect the validity of the Act of parliament, in the way, the HumanRight Act seeks to maintain the principle of Parliamentary sovereignty.
The convention was drafted...