The incorporation of The European Convention of Human Rights (ECHR) into the domestic law under The Human Rights Act 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Human rights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of Human Rights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of Human Rights into the ambiguously worded statute. Neither can judges invalidate Acts of Parliament for the failure of protecting rights.
In the UK, prior to the HRA 1998, it was argued that the laws would not be passed with the purpose of specifically conferring basic human rights. Over the years, duty-imposing rules have sought to diminish the value of rights to constant erosion by the way of legislation. For example, The Contempt of Court Act 1981 and the Official Secrets Act 1989, these laws either expressly deny human rights or alternatively grant wide discretionary powers to the officials to facilitate the governing process. This authorization of the Executive’s discretion allowed the legitimate infringement of Human Rights. The judiciary is defenseless when they faced with parliamentary provision. They had to interpret the statute according to Parliament’s intention and there was no presumption in favor of Human rights, Furthermore, legislative protection was minimal when it comes to positively stipulated rights. For example, the Sex Discrimination Act 1975, Equal Pay Act 1970 and the Race Relations Act 1065.
The position of human rights is protected in the UK before the enactment of the HRA 1998 was that the rights in UK were residual in nature. Although Professor Dicey stated that the courts are the protectors of individual rights; due to the supremacy of Parliament in the UK that there is no rule of construction that judges must imply Human Rights – the courts cannot invalidate an Act of Parliament.
Sir Thomas Bingham quoted a Lord Chancellor whom in 1992 stated that “in democratic societies, fundamental Human Rights and freedoms are more than paper inspiration.” They form part of the law and it is the special provinces of judges to see that the laws undertakings are realized in the daily lives of the people.
Protection of Human Rights is, therefore, an important ingredient in the pursuit of legitimate governing. Only a government can secure the respect, trust and obedience of its people to claim legitimacy. Governments that constantly infringe Human Rights will eventually lose support of its people. The American Declaration of Independence is perhaps a testimony of this.
Today, post HRA 1998, due to the constant breach of the ECHR in the UK, it was argued that the understanding of rights was not only distorted but inconsistent as well. The inadequacy of legislative protection in the past was also exemplified when one considers the amount of cases that have gone to Strasbourg. Not surprisingly the UK have been found guilty in numerous occasions in the past for failing to take positive steps to protect basic liberties. It is evidenced in the case...
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