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

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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.

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