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The European Convention of Human Rights

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Introduction

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. ...read more.

Middle

When considering this judges will take into account 3 issues:- - Was the legislative objective sufficiently important to justify limiting the fundamental right? - Were the measures adopted to meet the objective rationally connected to it? - Court must be satisfied that the means used to impair the right to freedom were no more than necessary to accomplish the objective? (proportionality test).5 Not only does the proportionality test give greater protection of peoples rights than the Wednesbury test, it also allows judges in Britain to interpret legislation in consistence with The European Court of Justice and the European Court of Human Rights. Proportionality has been used more frequently in recent years, since section 2 of The Human Rights Act requires judges to take into consideration judgements made by the Court of Human Rights. In creating this concept judges will be going further than they have been able to in the past because not only can they review cases because of illegality, irrationality and procedural impropriety, but they can now scrutinize the merits of legislation when it comes into conflict with the Human Rights Act. This has lead commentators and judges6 to question whether proportionality will stay solely with human rights issues or will it eventually cross over into traditional judicial review procedure. It would seem that an overlap of the two concepts could lead to unnecessary confusion and some consider that proportionality should override irrationality.7 This is not the only difference between traditional judicial review and judicial review under The Human Rights Act. ...read more.

Conclusion

Since the Act came into force there has been many cases involving breaches of convention rights, 13although little attempt has been made to study the overall impact that the Act has had on domestic law. One would assume though, that when the Act first came into force that there would have been a flood of insignificant and somewhat unmeritous cases. Hopefully as judges and lawyers become more acquainted with the Act, these cases will gradually reduce to make way for more significant cases. Conclusion. It would seem that The Human Rights Act 1998 has had huge impact on domestic law: Firstly by affecting past legislation which needs to be amended in accordance with the convention rights, also present and future legislation must be drafted with great consideration, so as not to contravene convention rights. Secondly, the Act has had a major affect on the interpretive powers of the judiciary and changed the ground for judicial review when a section of the Act comes into question. It has been mentioned in this essay that The Human Rights Act has not been allowed to become "legally entrenched"; this is a good thing because over the years, future governments will be able to amend the problematic sections of the Act. This will hopefully lead to a clearer understanding, not only to state bodies and the legal profession, but to individuals who wish to bring a claim. ...read more.

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