University of London
Common law reasoning and institution
Has the Human Rights Act (1998) led to a more pronounced judicial intervention into politics?
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The Human Rights Act 1998 is rightly considered to be one of the most significant constitutional developments of the past three hundred and fifty years. Its introduction heralded with much fanfare in the Labour party Manifesto of 1997 and in the subsequent White Paper “Bringing Rights Home” might have led an external observer to conclude that a monumental change was in prospect and to some extent they would be correct
The United Kingdom constitution is uncrates in formal sense and accordingly lays great emphasis on the virtues of the common law and the legislative supremacy of parliament. It relies heavily on the political recess to ensure that Parliament does not override the basic rights and liberties of the subject no remove from the courts the objection of dispute between the citizen and the state arising out of the exercise of executive power. The enactment of the HRA 1998, which came fully into effect in October 2000 marked something of a sea change in the way in which civil rights are protected under the domestic law of he UK.
Out went to the old Diceyian notion of individual rights being adequately protected by the common law as and when necessary with the emphasis on the negative right to do anything not expressly prohibited by law. In came the concept of positive rights, such as the right to privacy freedom of expression peaceful assembly and the right to family life.
The Council of Europe was established in 1949 and it was under this body that the European Convention on Human Rights (ECHR) was drafted in 1950, approved by member states in 1951 and came into force in 1953. ECHR was established to promote and protect human rights in Europe. The court of Human Rights remains the final arbiter in the protection of rights and where domestic law fails to provide a remedy for violation of convention rights, resource may be had to the court.
The citizens of the U.K did not get the rights of petition until 1965, and that before HRA it was only possible to enforce the rights by applying to Strasbourg. The convention Rights prior to the HRA-1998, being international law, the domestic Courts had no jurisdiction to enforce convention rights but where domestic law was unclean the convention could be used as a guide to interpretation. The case of Brind (1991) and Derbyshire Newspapers (1993) illustrating the many in which the domestic Courts used the convention as an aid to interpretation of domestic law, but no more.
However the previous procedure imposed substantial impediments on individuals in order to obtain a remedy. Sending cases to ECHR (France; Strasbourg) was quite expensive in itself. Moreover, the requirement of exhausting all domestic remedies along with the six months time limit made it extremely onerous for the prospective applicants. In addition, to these requirements, numerous admissibility criteria had to be satisfied. The procedure was therefore, time consuming and complex.
The issue to be explored is the extent to which these rights have become constitutionally guaranteed. The U.K authorities recognized the importance of the convention rights. The emphasis was very much on no longer having to go to Strasburg to claim redress; or not washing out dirty lines in public. The Labour Government that introduced the legislation was committed to “Bringing Rights Home.”
It is the simplest option for the U.K to incorporate the Convention rights rather than redrafting a new Bill of rights since the Convention has been proved to be successful in protecting Human Rights and judges of U.K are well versed with the jurisprudence of the European Court of Human Rights. The incorporation would also avoid dispute as to politics and substance...
Bibliography: 2 Subject Guide- Common law reasoning and institution W.J. Morrison, A.Gearey, 2007
1. Chapter: 4 Encountering Law is Common Law System; Principles of Legal Research and Reading the Law (p37)
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