The European Convention of Human Rights

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LAW 124: PUBLIC LAW II                                                           STUDENT NUMBER: 0003 0743 7 01

ASSESSED ESSAY QUESTION 2003/2004.                                        WORD COUNT: 2,124.

Introduction.

The European Convention of Human Rights has existed since 1951; Britain played an important part in the drafting procedure which promotes democracy and human rights.  At the time it was considered that there was no need to give legal force to the convention in the UK. because the “convention rights” were already considered in the British legal system.

     Despite this, in 1998 the Labour government introduced the Human Rights Act and it has since been subject to great scrutiny.

     In this essay I will discuss the impact that it has subsequently had in administrative law, firstly by explaining the relevant sections of the Act.  I will then discuss the relationship between the Human Rights Act and judicial review proceedings, particularly how public powers can be challenged and the legal rules that the Act has applied on “standing”. Finally I will give a critique of the Act and discuss the implications that it has on our legal system: i.e. “Human Rights culture”.

The Human Rights Act 1998.

As part of Labour’s 1997 election manifesto, they promised to enact the European Convention of Human Rights into British law.  This came into fruition with the Human Rights Act 1998 which came into force in October 2000.

      The Act enables “convention rights” to be enforced by the courts in Great Britain.  It has significant impact on administrative law in Britain because it states that all public authorities must act in a way in which is compatible with the convention.  This includes the courts, who must interpret legislation in accordance with the convention, plus, when making decisions, take into account cases which have already been decided by The European Court of Human Rights.  This will be discussed in greater detail below when the different sections of the Act are explained.

     Unlike the European Convention which has taken on a constitutional status; meaning that any European law which contravenes the convention can be declared invalid, The Human Rights Act only seeks to “give further effect to rights and freedoms guaranteed under the European Convention of Human Rights”.  Therefore The Human Rights Act doesn’t achieve any status higher than statute, enabling it to be amended or repealed at any given moment.  This stops the Act becoming “entrenched” in British law.  It also protects Parliamentary supremacy.

Understanding the sections of the Act.

Section 1 of the Act identifies the Articles of the European Convention that are included in the Human Rights Act; this also includes the 1st and 6th protocols:  the 1st is the right to protection of property, right to education and free elections and the 6th abolishes the death penalty.  Convention rights that are not included although not covered by statute may still be effective in common law.

    Section 2 states that during court hearings, if a convention right becomes an issue then the court must consider past judgements by The European Court of Human Rights or opinions of The European Commission for Human Rights.  Even though judges are not bound by these decisions they may use them as a guideline.

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    Section 3 covers primary and secondary legislation, both pre and post 1998 to make sure that “so far as it is possible to do so” legislation should be interpreted in a way in which is consistent with convention rights.

         It also urges judges to cast aside their methods of literal interpretation and adopt a more purposive approach.  This section is important when discussing judicial review later on.

            Section 3 (2) (b) states that even if a judge finds primary legislation incompatible with the convention rights this still does ...

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