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Evaluate the extent to which the Human Right Act 1998 is consistent with the traditional understanding of Parliamentary Sovereignty.

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Introduction

Evaluate the extent to which the Human Right Act 1998 is consistent with the traditional understanding of Parliamentary Sovereignty. How is it that the British Courts feel bound to disapply acts of Parliament inconsistent with EU law, but not those inconsistent with European Human Rights Law. Discuss Human Rights Act 1998 The United Kingdom was one of the initial signatories to the European Convention on Human Rights in 1950, which was established in post-war Europe as a means of enforcing essential human rights.1It was a direct result of the movement for cooperation in Western Europe, which in 1949 created the Council of Europe.2 By 1966, the United Kingdom had recognized the power of the European Court of Human Right to hear complaints of United Kingdom Citizens and the authority of the European Court on Human Right to adjudicate in such matters. The Convention declares certain human rights, which are or should be protected by the state and also provides judicial procedures by which the alleged infringement of these rights may be examined at an international level.3 The Convention could not have a direct effect in British courts because it was not incorporated into domestic law. The effect of which meant that individuals had to pursue their rights, which the state had endorsed in an external forum rather than through their own forum.4 However by 1998, these conventions were incorporated into domestic court and took effect from 2000.5 The Convention guarantees the following rights and freedoms: right to life (Article 2); freedom from torture and inhumane or degrading treatment or punishment (Article 3); (Article 5); right to a fair and public trial within a reasonable time (Article 6); among many others. The Act incorporates into our domestic law the rights and liberties enshrined in the European Convention of Human Rights (ECHR), by giving it a further effect. The government's portrayal of the Acts as "bringing human rights home" or "the domestication of human rights" seeks to suggest that the Act will achieve a delicate ...read more.

Middle

Act 2000) - duty held not to arise if evidence showed that defendant presented no continuing danger to public, thus enabling mentally disordered person to be subject to a hospital order (HL approving the interpretative license' exercised in R v Offen 23- this was necessary to avoid automated incompatibility between automatic life sentence and Articles 3 and 5 ECHR. But the duty of interpretation under s 3 HRA does not entitle court to 'legislate' Re S (Minors) (Care Order: Implementation of Care Plan),24 The Court of Appeal was not entitled to read new rights and responsibilities into Children Act 1989, nor to impose new reporting duties on local authorities regarding children in their care, even if aim was to reduce risk of children's right under Article 8 ECHR being infringed. Poplar Housing Association Ltd v Donoghue,25 the court was not entitled to use its duty of interpretation under s 3 HRA to modify duty of court to make a possession order under Housing Act 1988, s 21 (4), by inserting phrase 'if reasonable to do so' Parliamentary Sovereignty and the European Union It has often been said that Parliament may not legislate to create limitations upon its own powers, however, so long as United Kingdom remains a member of the European Union, Westminster's authority is limited by Community law and the courts must disapply United Kingdom legislation if it conflicts with Community law.26 The European Union, of which the European Community forms part, is a unique, supranational grouping of states created in 1993 by the Maastricht Treaty.27 Its precursor the treaty of Rome created the European Economic Community. The United Kingdom acceded to the EEC by the Treaty of Brussels 1972, which was implemented in the United Kingdom by the European Communities Act 1972.28 The main provision of the European Community Act which is seen in section 2(4) of the act provides that any British enactment 'passed or to be passed' shall be subordinated to directly effective Community law. ...read more.

Conclusion

Law p.284-5 32 Duke v GEC Reliance Ltd [1998] AC 618 33 Finnegan v Clowney Youth Trainning Programme Ltd, [1990] 2 AC 407 34 Terence Daintith, Implementing EC Law in the United Kingdom: Structures for Indirect Rule, p. 316 35 Pickstone v Freeman plc [1989] AC 67; Lister v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546 36 Case 6/64 Flaminio Costa v ENEL [1964] ECR 585 37 Ibid 38 EC Treaty, Art.248 (old Art.189) 39 See Case 11/70, Internationale Handelsgesellchaft case [1972] 40 Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA (No.2) [1978] 3 CMLR 263, 268 41 For the Factortame litigation, see R v Transport Secretary, ex p Factortame Ltd (No 1) [1989] 2 CMLR 353 (CA), [1990] 2 AC 85 (HL); Case C-213/89, R v Transport Secretary, ex p Factortame Ltd (No 2) [1991] AC 603 (ECJ and HL); Case C-221/89, R v Transport Secretary, ex p Factortame Ltd (No 3) [1992] QB 680 (ECJ); Case C-48/93, R v Transport Secretary, ex p Factortame Ltd (No 4) [1996] QB 404 (ECJ); R v Secretary o f State for Transport, ex parte Factortame (No 5) [2000] 1 AC 524. For proceedings by the Commission under art 169 (now 226) see Case C-246/89, Commission v UK [1991] ECR 1-4585. For the sequel, see Merchant Shipping Act 1998 (Amendment) Order 1989, SI 1989 No 2006. For an account of the costs of the Factortame case, see HL Deb, 4 July 2000, WA 132 42 [1990] 2 AC 85, 140 43 See R v Employment Secretary, ex p EOC [1995] 1 AC 1 where declarations were made that provisions of the Employment Protection (Consolidation) Act 1978 were incompatible with art 119 (now art 141) of the EEC Treaty and Council Directive 75/117/EEC and that other provisions of the Act were incompatible with the latter. 44 Bradley & Ewing, Constitutional and Administrative Law p 142, see also (1996) 112 LQR 568 45 Sionaidh Douglas-Scott, Constitutional Law of the European Union, p.259 ...read more.

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