Explain How the Human Rights Act Incorporates the European Convention on Human Rights into English Law

First to explain how the European Convention on Human Rights is incorporated into English law we must understand what the European Convention on Human Rights actually is. When the European Convention on Human Rights was drafted the United Kingdom played a major role in the drafting of it and was the first country to ratify it. The European Convention on Human Rights is a treaty that countries signed which contains articles on basic human rights. Before these rights were incorporated into English Law the rights in the treaty had very little effect domestically in the United Kingdom. One effect it had was that if a defendant had exhausted all the available options domestically an appeal could go to the European Court on Human Rights in Strasbourg. This was of little use as it would not only take a long time for the case to get there, but if the United Kingdom was found to be violating the defendants Human Rights the court could only offer compensation of £10,000. Another use the European Convention on Human Rights had in the United Kingdom was as an aid to statutory interpretation for Judges. This is also of little use as the statute had to be ambiguous for it to be used and therefore it was not very effective for people wishing to enforce their Human Rights.

In English law our rights were residual and we had no positive rights. This meant that we were free to do anything that was not prohibited by law. This meant that by passing new laws the government could restrict our rights as far as to us having no rights if they made enough laws to do this. This is a serious concern as a government could restrict all our rights and we could then have no say in what the country is run like.

To make our Human Rights more secure the government passed the Human Rights Act in 1998 ...

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To make our Human Rights more secure the government passed the Human Rights Act in 1998 which came into force in 2000. This incorporated the rights set out in the European Convention on Human Rights into English Law. The Human Rights Act did not create a list of rights but uses the rights set out in the European Convention on Human Rights.

This does not go as far as entrenching our Rights but it does set them out in an act which means they are actually part of our law. Entrenching our rights is like for example the American Constitution where their rights are entrenched as it takes, for it to be changed, more than ¾ of the states to agree to it. This means it is so hard to change that the rights are as such entrenched. No Law made in American can violate the constitution. Our rights are not entrenched because all it would take is for an Act of Parliament to wipe out the Human Rights Act and also Acts of Parliament can violate the Human Rights Act because under section 19 all a Bill needs is a statement of incompatibility in the bills 2nd reading for it to pass to become an Act (For Example the Anti Terrorism, Crime and Security Bill was in violation of Human Rights and all Parliament needed to continue with the Bill was a statement of incompatibility for it to continue, although it was rejected by the House of Lords, possibly due to the fact that it violated Human Rights). If Parliament were making a lot of Laws that needed a statement of incompatibility then this would not give them a good image in the public’s eye and therefore would want to use this as little as possible. This shows that although our rights are not entrenched, they do have power and although can be changed very easily, Parliament would not look good in the public eye and this pressure could keep the rights as they are. This shows that in a way the Human Rights Act is a Bill of Rights as it is a list of fundamental Human Rights although it can be changed easy so this makes it not a Bill of Rights.

For the Human Rights Act to incorporate the European Convention on Human Rights into our law the following sections in the act are used which are important.

s.2 – English Courts must take into consideration the decisions of the European Court on Human Rights into account when making decisions of their own, although they are not bound by these decisions (Persuasive Precedent)

s.3 – Legislation must be read as far as possible to be compatible with the European Convention on Human Rights. Although if this is not possible the domestic legislation will be used rather than the European Convention on Human Rights. This is different before as before the Human Rights Act the European Convention on Human Rights could only be used if the wording of the act was ambiguous.

s.4 – Courts can issue a declaration of incompatibility if a piece of domestic legislation is incompatible with the European Convention on Human Rights.

s.6 – Makes it unlawful for a public body to act in a way that is not compatible with the European Convention on Human Rights, unless allowed to do so by primary legislation.

s.7 – Allows a defendant to use their rights in domestic courts if the European Convention on Human Rights has been breached. This is so cases don’t need to be brought to Strasbourg although it is still possible to do that if domestic options have been exhausted.

s.19 – This is the statement of incompatibility whereby Parliament can still pass an Act as long as a statement is made in the 2nd reading that the Bill is incompatible with the European Convention on Human Rights.

These are how the Human Rights act incorporates the European Convention on Human Rights into our Law.