Article 6, 'the Right to a Fair Trial'

Topics: Law, Common law, Human rights Pages: 9 (3137 words) Published: October 5, 2010
Since the coming into force of the Human Rights Act 1998, changes have had to be made to the justice system in respect of Article 6, 'the right to a fair trial'. Critically evaluate this statement. INTRODUCTION

Reconciling domestic legislation with regulations acknowledged by the European Courts of Human Rights (ECHR) illuminates perceived violations of fundamental guarantees, integration being incompatible with the principles of accountability lying within the precepts of Parliamentary sovereignty and its doctrine of implied appeal. This concept has since been superseded by Section 2 (4) ECA 1972, which entails compliance to all Community legislation. The Human Rights Act 1998 illuminated this problem but the ECHR were limited to ambiguities of interpretation with constrained formal recognition of its legality. The 2004 Constitution of Europe consists of 36 Protocols altogether, two further ones of which relate to the Treaties of Accession. Associated with this Constitution are 50 accompanying Declarations which clarify the Charter of Fundamental Rights and which establish the European External Action Service, and the Final Act confirming the signatures appended by the Heads of the 25 Member States all agree with the Treaty, Protocols and Declarations which make up the Constitution. Whilst awaiting ratification, the Charter of Fundamental Rights is the legislation currently revealed in the Human Rights Act 1998 within the context of which can be found Articles 2 to 12, plus Article 14 and Article 1 of the first Protocol. Article 6, applying specifically to the HRA, will be re-inserted into the Constitution of Europe as Chapter VI [Article 47]: ‘right to an effective remedy and to a fair trial’ This essay briefly traces the history of the constitutional mandate or prerogative powers, discusses the hierarchy of the English legal system and the sovereignty of Parliament. It then examines the contention vis-à-vis the right to a fair trial in relation to EU policies and legislation, then attempts to reconcile both whilst focussing on the changes in the justice system in response to Article VI following the introduction of the Human Rights Act 1998 and, most especially, the signing of the formal Constitution for Europe in Rome during October 2004. DISCUSSION

Prerogative Powers
The tacit mandate of the Constitution within the United Kingdom is realised through the Statutes, The Common Law and established Conventions through which the various organs of State are co-ordinated, an inherent part of the charter without being incorporated into the actual law. Through habitual utilisation revealing the expectations associated with these Conventions, a compliance affecting political and legal activities limits any prerogative powers, although not legally enforceable. The doctrine that maintains a separation of powers reinforces the concept of the Constitution. The Rule of Law is the third principle of the Constitution which confirms the legitimacy of the Government and prevents arbitrary legislation being applied indiscriminately. As a result, freedom is assured in the absence of specific contrary legislation, a situation which applies equally to Government ministers. Delegated legislation can, however, be subject to judicial review with a challenge being subject to the principles of natural justice, revealed in the ‘rule against bias’ and the ‘right to a fair hearing’. This was applied with respect to a case involving property development and a local councillor. One of the remedies for a judicial review is the prerogative of Certiorari reverting the initial problem back to its initiator. The prerogative remedy of mandamus results in a prohibition preventing an action being carried out. Other prerogative remedies are habeus corpus, injunctions and declarations, and damages. Hierarchy of English Legal System

Currently, the English legal system is administered by a range of Government departments with the Home Office being responsible...
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