The incorporation of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998
In evaluating ‘The incorporation of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998 had no influence on English Law, as the concept of rights has always been part of English Law’ it is necessary to examine English Law prior to the incorporation and then examine both the European Convention on Human Rights (ECHR) and then its incorporation by Human Rights Act 1998 (the Act). First, though, it is necessary to examine the meaning and concept of human rights.
In examining human rights, it is necessary to focus upon legal rights as opposed to moral rights. Legal rights are artificial, created by governments; they are particular in that they apply to those in a particular society living under a particular system; thus they are not universal; and they are alienable, in that they can be given up or modified. It is important to note that ‘rights’ are not the same as ‘needs’ or ‘desire.’ (Heather Montgomery, 2012, pp9-10,14,15). As Scruton declared ‘rights are not secured by declaring them.’ He further added that rights can be defined as freedoms. (Scruton, R. 2004 pp 18-19). Historically, human rights are complex especially where they tend to be unwritten and in the UK it has been assumed that we are free to do what we want unless it is forbidden. (Heather Montgomery, 2012, p15)
The UK, unlike other countries such as Italy, does not have a written constitution laying out human rights and there has been little written legislation in regards to such rights. Historically, an important ‘rights’ document was the Magna Carta 1215. This was brought about ‘forcibly’ rather than politically, mainly dealing with complaints and rights of the barons. Another important milestone in English Law was the Bill of Rights 1689. This settled disputes between Parliament and the King. Both of these did little for ordinary Englishmen. (Heather Montgomery, 2012, pp15-16). Even though Jeremy Paxman wrote that one of the defining characteristics of the English
In examining human rights, it is necessary to focus upon legal rights as opposed to moral rights. Legal rights are artificial, created by governments; they are particular in that they apply to those in a particular society living under a particular system; thus they are not universal; and they are alienable, in that they can be given up or modified. It is important to note that ‘rights’ are not the same as ‘needs’ or ‘desire.’ (Heather Montgomery, 2012, pp9-10,14,15). As Scruton declared ‘rights are not secured by declaring them.’ He further added that rights can be defined as freedoms. (Scruton, R. 2004 pp 18-19). Historically, human rights are complex especially where they tend to be unwritten and in the UK it has been assumed that we are free to do what we want unless it is forbidden. (Heather Montgomery, 2012, p15)
The UK, unlike other countries such as Italy, does not have a written constitution laying out human rights and there has been little written legislation in regards to such rights. Historically, an important ‘rights’ document was the Magna Carta 1215. This was brought about ‘forcibly’ rather than politically, mainly dealing with complaints and rights of the barons. Another important milestone in English Law was the Bill of Rights 1689. This settled disputes between Parliament and the King. Both of these did little for ordinary Englishmen. (Heather Montgomery, 2012, pp15-16). Even though Jeremy Paxman wrote that one of the defining characteristics of the English