The European Convention on Human Rights and its effect on the UK Judiciary Essay Example for Free

The European Convention on Human Rights and its effect on the UK Judiciary Essay The UK legislation incorporated the provisions of the ECHR or European Convention on Human Rights, with the enactment of the 1998 HRA or Human Rights Act. This measure imposed a grave responsibility on the English judiciary, with which it was in the least experienced. Every individual in the UK has certain rights and this new legislation compels the courts to decide whether any of these rights have been trampled upon by the different measures adopted by the UK government . In the process of this exercise, the judiciary has to scrutinize even the legislative actions of Parliament, and it has to analyze the effect of the acts of the state on individuals or groups. As such, the national courts, while conducting judicial reviews, had concentrated on whether the acts and rulings of government institutions and officials had been within the boundaries prescribed by the extant legislation. In this endeavour, the UK courts had, in general, ignored such transgressions by the Parliament . The enlargement of the scope of their rulings had proved to be quite a daunting task for the judiciary. In addition, section 6 of the Human Rights Act, requires the courts to conform to the rights provided by the ECHR. Any incompatibility with these rights requires the specific sanction of Parliament. Consequently, the courts have to conduct inquiries that are protective in nature and not prosecutorial . The Human Rights Act is efficiently implemented in the UK and it cannot be replaced by a separate Bill of Rights. The UK courts have greater flexibility in pronouncing verdicts and this was enabled by the HRA. The HRA also enabled the UK courts to function along the lines of the ECtHR. The decisions of the UK courts, in the context of human rights, will undoubtedly have an important influence on the jurisprudence of the ECtHR. Thus, the UK is now enjoying the full advantage of the margin of appreciation provided by the Strasbourg court . The provisions of the ECHR have been integrated with the British law through the Human Rights Act. Under section 4 of the HRA, the House of Lords and the Court of Appeal can derogate from the ECHR by declaring incompatibility with the ECHR. However, national courts are not permitted to declare statutes as incompatible with the ECHR. In the event if any national court declaring a statute as being in conflict with the ECHR; or in the event the ECtHR specifying that certain statutes are in conflict with the ECHR, the government can rescind or amend such conflicting statutes, under the provisions of sections 10 and 11. Section 12 of the HRA requires both the Houses of Parliament to pass a resolution, which seeks to implement such remedial orders of the government, which seeks to amend or to repeal a conflicting statute. However, in cases of urgency, a minister can do so and subsequently, seek the necessary approval . In addition, there are other requirements to be fulfilled. First, under section 3, the government must adopt a procedure to interpret the provisions of the HRA and the procedure it adopts must not conflict with the ECHR. Second, the HRA imposes on the public authorities a new legal obligation under which they must not act in a manner that is incompatible with the ECHR. Section 6 of the HRA states that this duty may not apply if a statute specifically requires them to act in such manner. As such, the HRA provides substantial grounds to oppose constitutional principles and the bill of rights . The current situation is that the development of legislation has fallen to the lot of the judges. This is an unprecedented development. The UK judges have to interpret and implement the Human Rights Act, in accordance with the Commission on Human Rights and the jurisprudence of the court; however, this jurisprudence is not binding upon them. Consequently, they enjoy a significant amount of leeway in modifying the tenets of the ECHR to suit the circumstances obtaining in the UK. This makes the courts susceptible to the criticism that they have injected their own values into the legal system . In addition, the ever increasing importance of the judiciary will bring considerable attention to bear on their competence, structure and character. Despite the seeming vividity of the incorporation of the ECHR into the legislation of the UK; the effectiveness of this measure, to a significant extent, is dependent on the stance adopted by the judiciary, in this regard . As such, the European Union is very much seized with the task of engendering human rights, as is evident from its action of specifying a new charter of rights to be implemented on its schedule. This new charter is certain to prove much more effective than the Human Rights Act. This is due to the fact that the UK judiciary would have to uphold the rights bestowed by it, even at the cost of directly overriding the existing legislation . In the United Kingdom the citizens have fundamental rights. These fundamental rights are enforced within certain limitations and are subject to other legislation. The operation of the fundamental rights is usually seen in the context of their negative implications. For example, the right to freedom of speech is respected to the extent to which it does not contravene other legislation. Thus, fundamental rights are enforced only when they do not attract any legal provisions . The UK courts interpret the provisions of section 6(3) (b) of the Act in a restricted and limited manner. This narrow interpretation by the courts results in non inclusion of a majority of government branches in the definition of Public Authority. This ultimately results in the improper implementation of the rights provided by the ECHR in the UK. The courts are taking the institutional position of regulatory bodies in determining whether they are public authorities, under the scope of section 6(3) (b) of the Human Rights Act. In cases of infringement of human rights, the UK courts deal with them by adopting a proportionality test in an effort to arrive at a balanced ruling. This concept is at variance to the narrow interpretation that was being accorded in the past. The UK courts employ a broader and more balanced approach, in order to have greater flexibility in making decisions, in accordance with the precepts European Court of Human Rights. This wider application of the Human Rights Act by the UK Courts is aimed at ensuring the human rights and personal interests of the general public . The United Kingdom has no written constitution. Legal experts consider that in the absence of a written constitution, it is very difficult for the executive or legislature to operate independently. The royal prerogative and parliamentary sovereignty are the basic concepts that shape the UK’s legal order. In WEBB v OUTRIM , Lord Halsbury had stated that an Act of Parliament should be an Act of Parliament and none can go beyond that concept . The HRA integrated the ECHR into the laws of the UK. This enabled the ECtHR to decide human rights cases, of the UK. The UK has to comply with the decisions of the ECtHR. In this manner, the ECtHR gradually assumed control over the British judiciary. It criticised the new Prevention of Terrorism Act 2005, because it infringed the human rights of British citizens who are also citizens of Europe. It pointed out that almost every aspect of the government’s attempt to curb terrorism on British soil was a violation of human rights . The United Kingdom had been a signatory to the ECHR and complied with the Convention. The British courts are directly enforcing the provisions of the ECHR. The HRA had successfully integrated the British law with the ECHR. The domestic courts in the UK are efficiently making use of the ECHR as an interpretative instrument in cases of legislative uncertainty. Individuals whose basic rights have been infringed can take the UK government to the ECtHR by filing a suit before it . This right of individuals can only be used after all domestic legal remedies have proved futile in redressing the wrong done to an individual. Therefore, bringing an appeal before the ECtHR entails a costly and elaborate procedure. However, this situation has been rendered much simpler at present. If a domestic court finds an act to be conflicting with the provisions of ECHR, then that court can directly award relief or remedy to the victim. It may award damages to the extent that it finds appropriate . Such a remedial action may include the award of compensation for damages ensuing from a breach of the ECHR rights. The court may allow the dispute to be relied on in other proceedings. The extensive powers bestowed upon the courts by the ECHR, has generated considerable constitutional objections. . The liberalization of the process of the interpretive method, which is a vital component of the HRA, poses a much greater danger to a democracy, in comparison to the predicted deference of Parliament towards assertions of incompatibility. Apparently, it looks as if there is greater validity for the right of Parliament to decide upon the law to be implemented in the UK, rather than the present interpretive procedure. Nevertheless this right of Parliament is susceptible to the current interpretive methodology . At its worst, the Parliament can enact a piece of legislation at its will and pleasure, and the national courts can rescind it on the grounds that it is not in accordance with the ECHR. The right of Parliament to make laws and the right of the judiciary to interpret them are equally and firmly ensconced. There is near unanimity of agreement regarding the view that it is the prerogative of the courts to interpret the law. This is due to the understanding that it comprises a component of the process of adjudication, which is considered to be its exclusive domain . The upshot is that Parliament cannot discard judicial interpretation of statute. In addition, it cannot express misgivings about the interpretive methods adopted by the judiciary. The reason is that such acts violate the constitution, in addition to being difficult to justify politically. Thus, judicial prerogative is invulnerable to the demands of democracy. In this manner there is the very real danger that the judiciary could make an inroad into legislative authority. This would render the HRA a very potent instrument for stifling or curbing elected governments, and could possible generates a number of doubts regarding its democratic qualities . The ECtHR assumed a secondary place in protecting human rights in Europe, and left the primary task or the active role to the member states’ legal systems. It had reduced its role to a subsidiary position, with respect to the national judiciary. From the perspective of the Convention it did so for two reasons. First, the ECHR had remained as the minimum standard for basic human rights. By assuming this position, it would be easier for the Member States to attach themselves to it without discontent and to easily comply with the minimum standards of human rights protection . The ECHR had aspired to become the first step in the ladder of protection of human rights, and it pre empted any descent below this conceptual ladder. Secondly, it aspired to distance itself from dealing with cases, in which the member states could possibly breach these minimum standards. It is practically impossible for it to deal with each and every case of violation of human rights. Therefore it did not aspire to be a threshold for every claim concerning human rights . This step forced the member states to shoulder the major responsibility for protecting human rights in their states. Article 13 ECHR requires the Member States to be under an obligation to protect the human rights of their citizens. Moreover, the appellants are under an obligation to approach all national legal avenues before invoking the ECtHR. They can approach it only when all other domestic possibilities have been exhausted. This is the prerequisite for the claims to be admitted before the ECtHR . Accordingly, the State courts are required to deal with human rights violation cases, to the extent that the state’s constitution permits them. If they find that there is a conflict between the state’s legislation and the obligations of the Convention, then and only then, the national courts should refer the claims to the ECtHR. In other words, national courts are required to possess knowledge about the provisions of the ECHR and the jurisprudence of ECHR’s institutions. In a similar manner, whenever the Convention imposes certain duties on them, the national courts are required to enforce them. In addition, if the Convention permitted some discretion in these duties, the national courts would have to determine the extent of the applicability of such discretion . The United Kingdom is a signatory to the European Convention on Human Rights. However, it had not integrated the principles of the ECHR into its domestic law until the implementation of the Human Rights Act 1998. The European Court of Human Rights had established that the Convention had not imposed any obligation on the parties to accord a direct effect of the Convention rules. However, it was an implied obligation on the part of the members to incorporate the provisions of the ECHR . Unconstitutionality was a concept which was alien to the English courts. However, over the centuries, the judiciary evolved as an important branch in the British constitution; which enabled the Law Lords to declare Acts of Parliament as unconstitutional. Furthermore, the European Court of Human Rights can also rescind some Acts of Parliament, which are in conflict with the ECHR. Despite these developments, the British judiciary had maintained its role as impartial and capable of providing balanced judgements. At that point of time, the Human Rights Act 1998 was enacted, which further influenced the British judiciary, albeit in a positive manner . The ECHR provided the maximum powers to the courts, like, judicial review and the repealment of offending legislation enacted by Parliament. The traditional concept of Parliamentary Sovereignty is slowly vanishing due to the decisions of the courts, which have been empowered by the ECHR. Therefore, it can be concluded that the adoption of the ECHR has significantly modified the role of the judiciary in the UK.