• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

How are human rights protected in the UK system? What is the basic relationship between the UK courts and Strasbourg?

Extracts from this document...

Introduction

How are human rights protected in the UK system? What is the basic relationship between the UK courts and Strasbourg? When considering how human rights are protected in the UK, it is important to consider how traditional approaches to human rights protection have proved ineffective. The Diceyan approach stated that common law protected human rights, allowing people to be as 'free' as they like, as long as the law allowed them to be (i.e. Entick v Carrington [1765). This reliance on common law proved to be ineffective in protecting human rights for a number of reasons. If the common law allows citizens to be 'free' to anything not prohibited by law, the same applies to the Government, which may violate individual freedom in this manner (i.e. Malone v Metropolitan Police Commissioner). Additionally, while Parliament in previous centuries could provide a 'watchdog' on executive power, this is no longer the case in the 20th/21st century where the party system has lead to majority based governments that can enact statutory legislation with minimal restrictions. ...read more.

Middle

The addition of the Human Rights Act (HRA) [1998] allowed for Convention rights to be enforced in the domestic courts, thus removing the need for an individual to go Strasbourg to enforce their Convention rights and incorporating the ECHR into domestic law. The Act has been a substantial addition to the protection of human rights. Despite the government's insistence that the HRA would not allow courts to strike down primary legislation, section 3 allows courts to make declarations of incompatibility with the ECHR (as observed over the Mental Health Act 1983). This feature counters the modern concern of an overtly powerful government. It does not diminish parliamentary power to pass Acts of Parliament, but legislation ruled incompatible is highly damaged and will require revision or suffer from wide technical difficulties. The Human Rights Act, while not being a comprehensive protectorate of human rights, is nonetheless essential in this respect and adds extra weight to the Diceyan concept that common law can protect individual rights. ...read more.

Conclusion

Firstly, the European court ensures that Human rights as stated in the ECHR are adhered to by States under its jurisdiction. Secondly, this has lead to legislative changes in the UK system based on cases ruled in breach of the ECHR (i.e. Dudgeon v UK lead to the Homosexual Offences Order 1982). However, this seemingly powerful influence of Strasbourg is not comprehensive as the UK government has the ability to not give European Court decisions any effect (i.e. Adulaziz v UK, Brogan v UK). It can be argued that the relationship between the UK and Strasbourg 'skeletal' in nature, as the UK has ensured it retains 'parliamentary sovereignty' and ultimate power over how individual rights are treated. The Anti-Terrorism, Crime and Security Act 2001 (detention without trial of terrorist suspects) highlighted the government's ability to deviate from Convention principles. Despite this, it is indisputable that the HRA, the ECHR and the Strasbourg institutions act as vital checks and remedies to the potential abuses of human rights in the UK, where the legislature is underlined by the concept that it is unequivocally 'supreme'. John Tippett-Cooper ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. "In form, the Human Rights Act (HRA) is compatible with parliamentary sovereignty. In practice, ...

    Although the HRA does not empower courts to question the legality of primary legislation, it does offer the opportunity to challenge a statute's legitimacy through section 4's device - the declaration of incompatibility. This novel remedy applies where a court cannot interpret a statutory provision in a way which is compatible with a Convention right.

  2. Discuss whether incorporation of the European Convention on Human Rights into the domestic legislation ...

    Some of the rights included are, for example, the Right to Life (Article 2). This has not been defined to give an exact meaning but has been shown that it imposes a range of positive obligations on member states.

  1. Outcome (3): Analyse the provisions relating to the police powers of arrest, search, seizure, ...

    search certain vehicles for articles which can normally be freely and legally carried. It is an extreme power for the 21st century as it was established in 1985at the height of football hooliganism.

  2. How has the European Court of Human Rights contributed to the protection of children's ...

    Very often, the Court has protected parents' privacy rather than child's own, as Eekelaar and Dingwall commented24. Olsson v. Sweden25 reflects this in that state interference with parents' Art. 8 rights required to be justified by strict necessity. Nielsen v.

  1. Assess the impact of the European Convention on Human Rights on UK law.

    The fact that a state has ratified the Convention does not mean it has to incorporate Convention provisions into its domestic law; each state can choose whether or not to do this, about half have already done so. The UK refused for many years to incorporate the Convention and so

  2. Evaluate the extent to which the Human Right Act 1998 is consistent with the ...

    of the Parliament."12 This ensures that the courts will obey any new Act of Parliament as seen when faced with two conflicting Acts of parliament of the same statute, the court applies the later act as no sovereign Parliament is bound by its predecessors.

  1. Discuss the extent of the states obligations under articles 2 and 3 of the ...

    that case, the best interests of "I" was that his right to be allowed to die with dignity should be upheld. In this case, Article 3 took precedence over Article 2. The European Court has established that medical treatment without consent could, in extreme circumstances, be considered inhuman or degrading treatment11.

  2. Free essay

    heirachy of civil courts

    In civil cases, appeal from magistrates' courts usually lies to a divisional court of the family division of the high court. Superior courts (a) The high court of justice The high court deals with the more serious civil cases, and hears most appeals from the county courts.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work