The same applies for putting someone in prison; every individual has a right to not be deprived of his or her liberty. The issue of human rights constantly affects us and there will always be conflict and need for balance. How this balancing act is carried out by UK institutions, and particularly by the European Court of Human Rights, will therefore be open to scrutiny in difficult cases.
Before the HRA, a person could go to the European Court of Human Rights, but that was — and still is — an extremely long and arduous process discussed in further detail below. You could also still use the articles of the ECHR in an argument before a UK court of law, but the extent to which a British judge had to interpret the text was very open and not subject to any real scrutiny.
What the HRA did was to make these rights real. For example, as mentioned in section 6 of the HRA, it is now unlawful for a public authority in other words, a body or person deriving its powers from the UK Parliament to act in a way that is incompatible with the rights protected under the ECHR. And if they do act in such a way, a person no longer needs to go straight to Strasbourg; they can make arguments based on the ECHR in any of the UK courts. This can provide victims with remedies, and, as per section 7, it allows courts to declare a piece of legislation incompatible with the convention rights.
It merely informs the UK that the law needs to change — and most of the time, the UK Government and Parliament will then seek to amend the law. But, ultimately, Westminster is considered sovereign and cannot be forced to change its laws. There is a slight difference in Scotland, where, according to The Scotland Act s.
This is because the Scottish Parliament derives its powers from Westminster which remains in overall control and therefore can be subjected to greater constraints by the legal system.
An individual can go to a local sheriff court and plead human rights arguments in his or her defence. This has become relatively standard in criminal cases now. Consequently, some argue that human rights are used by people who are not deserving of their rights.
It is true that terrorists and convicted murderers make human rights arguments based on the ECHR in our courts, and have been successful. But, in defence of the current system, it was not long ago that the general consensus was that the death penalty was appropriate; or that it was acceptable to beat children in schools; or that it was fine for people detained by Scottish police to not have access to a lawyer.
In hindsight, most would look back and be shocked that these beliefs were considered mainstream and legal. It is only in the last 40 years, with legal challenges based on the ECHR, that such measures are no longer accepted. As a democratic society, the UK must always justify any interferences with human rights, no matter what the person has done. It is a guardian and watchdog of the ECHR and seeks to ensure that human rights are upheld by all member states.
It can tell the UK that it ought to change its laws, and has the power to order financial remedies and to use political measures as persuasive tools. But importantly, it cannot directly change the law of the UK. This is why the decision by the European Court that prisoners ought to have the right to vote in general elections does not mean that prisoners in the UK now have this right, and the UK Government has seemingly now put the issue to the side.
A whole guide could be dedicated to how to take a case to the European Court of Human Rights and how a decision will then be made, but the basics are:. There are a lot of issues with such a system; one court dealing with the problems of 47 member states is obviously going to have difficulties. There is often a backlog of cases, meaning it is not a quick process to apply to the court.
Interim measures can be sought if the case is urgent enough for example, if deportation is imminent , but realistically it takes a lot of time and money to have a case heard there.
These difficulties — alongside the previously mentioned issue of judges and their method of appointment — opens the system up to a great deal of criticism. It might damage Britain's international reputation and moral authority.
Grieve says the ministerial code would have to be amended so that officials could draft legislation that would otherwise breach the UK's international legal obligations. It would be more honest; though it would do political damage to the UK and the convention itself. We would remain signed up to by the EU's charter of fundamental rights. This can be used to trump other acts of parliament when the courts are interpreting legislation required by EU law.
If the UK pulls out of the human rights convention, Grieve fears that the EU court of justice in Luxembourg — nothing to do with the human rights court in Strasbourg — would expand its role, requiring the UK to comply with human rights judgments.
If we want to be sure we can make our own decisions on human rights in future without any risk that they will be overturned by a foreign court, the way forward is clear: we shall have to leave the Council of Europe — and the European Union.
This article is more than 7 years old. Ever wondered what the difference is between the human rights convention and the Human Rights Act? This may help. What's the difference between the human rights convention and the Human Rights Act? Why is there an act as well as a convention? What does the Human Rights Act say? What happens if a court in the UK finds that other legislation is not compatible with the convention?
What does "take into account" mean? What would be the effect of repealing the Human Rights Act? And what would happen if parliament enacted a "British" bill of rights? What effect do those defeats have? And what if they do not? What if Britain simply refuses to abide by the court's judgment on prisoner votes?
What options are open to a government that does not want to abide by a decision of the court? What would the political consequences be?
But that's not the same as leaving the European Union? Are there other options for the UK short of pulling out? Is there a compromise? Is that enough for the Conservatives?
Aren't they already sovereign? What about a democratic override? So how would the Conservatives make parliament supreme? Would that work? Could the UK live with that breach? So it would be better to pull out of the convention? But at least it would give the UK control of its own human rights laws? So we would have to leave the EU too? Reuse this content. It starts with Lord Lester assessing what he sees as the new laws' impact.
I wouldn't like to frighten the horses. It seems to me that all that we are really doing is putting our courts, our judges in a similar position to the judges of every other democracy. Indeed, in a slightly weaker position because in most other democracies judges can strike down legislation that breaches human rights. Here the government have come up with a more subtle compromise in which parliamentary sovereignty is preserved but it's reconciled with the need for effective judicial remedies.
So our judges can't strike down legislation. What they can do is to interpret it strongly in a way that's compatible with human rights and only in one percent of the cases are they likely to have to declare that a piece of legislation is incompatible with the Convention. So they make this declaration that a Westminster statute might be incompatible with the Human Rights Convention and then parliament would presumably have to then amend the legislation.
So it's a sort of fig leaf to preserve the illusion of parliamentary sovereignty. No, it's not a fig leaf. What it is is recognising the partnership across the three branches of government. It's the judges' function to interpret the law, it's parliament's function to make the law, it's the government's function to introduce measures now -. Yes, but from what you've said, they could have, we could have said, well the judges will from now on have the power to just declare the legislation from Westminster wrong and strike it up.
But instead it's gotten to this form of words where the judge will just say it's wrong and parliament will have to do something about it. No, parliament won't have to because if a government or parliament doesn't want to, the case will then go to Strasbourg to the European Court of Human Rights. Well I just want to bring in John Laughland who's parked over there in America, and I think is not such an enthusiast for this legislation.
You don't like it, do you, Dr Laughland? No I don't, and indeed I was struck by Lord Lester's attempt to have it both ways. The fact is that under the future arrangements if a law is deemed to be incompatible with the traditional interpretation of human rights, then parliament will be required under British law to revoke it and there can be surely no clearer example of the fact that the sovereignty of parliament is abrogated by this measure.
And is this a bad thing, if we're putting things on a rational footing and having human rights incorporated into our law and across Europe? Is that not a way of getting everybody's rights spelled out for them? Yes, it is a bad thing. It's a bad thing I think for two reasons. First of all because human rights legislation as such is legal nonsense. I'm choosing my words very carefully even though I'm sounding rather provocative.
Human rights documents are legal nonsense in the sense that they are expressions of intent. They are expressions of desire. They are expressions of the way we would like the world to be. They contain things for instance like, you know, everybody has a right to equality and non-discrimination and so on. But precisely judicial activity is about adjudicating between people who have competing rights.
I may have a right to equality and you may have a right to equality or whatever, and the purpose of a court is obviously to decide between us. What about when it expresses a general principle that the government may not interfere with an individual's rights? I don't know, I thought you might be interested in the rights of the individual. So if one's entitled to a fair trial and some procedure is brought in by the government that offends against that in judicial eyes, then that's a protection to the individual against some sloppy bit of legislation or oppressive legislation.
Well of course I'm in favour of individual rights and that's why I support the present common law arrangements, because they have been shown to protect those rights far more substantially than any other system over many centuries. But I think behind your question lies a very common misunderstanding and it is often argued, as you have I think suggested, that such legislation does provide a protection from the state.
This is frankly an optical illusion. Because all that you are doing, integrating a human rights law into British law, is to displace power from parliament to judges. To put it another way there are in fact no rights against the state, there is no such thing as rights against the state in the sense that if any such right is enjoyed it is obviously enjoyed only if it is protected by an officer of the state, in this case a judge. And therefore if you hive off as I say this kind of law-making power to judges you are simply begging the question, or rather causing the question to be put once again, who guards the guardians?
The membership of the European Court in Strasbourg is highly questionable. As you know the Council of Europe has gone on an expansionist binge in the last ten years. We now have sitting inside it countries which are frankly totally lawless, many of which have only recently acquired democratic and legal traditions.
Well, is your objection to this then more that it involves well foreigners? Getting -. The Supreme Court in this new legislation is staffed partly by people who frankly should not be sitting in judgment over a British citizen. I wonder if could just deal with one of John Laughland's points and try to puncture the complacent assumption he makes which is that the common law was perfectly adequate to deal with all these problems, better than the Human Rights Act.
However much he may not like this I have to say that the European Court, that alien court, has had to come to the rescue of our system again and again because our judges couldn't do so: in the area of free speech; in cases like Thalidomide and Spy Catcher; personal privacy in relation to for example the rights of homosexuals; Discrimination; even habeas corpus, that great English writ of habeas corpus.
The European Court has given a stronger guarantee of the right to liberty than we did. And what this act does is to bring these rights home to allow our judges to renew the common law, to refresh the way they interpret statutes, in the interests of the citizen against the state. One of the main purposes of the enterprise is to protect individuals and minorities against the misuse of public powers of the state. It's a kind of mixture of Burke and Jeremy Bentham to suggest that parliament knows best, or government knows best.
What we must do is to give the third branch of government a crucial role in protecting our rights. I'm not surprised that Lord Lester doesn't understand what I'm saying because it's obvious that people who support human rights legislation haven't asked themselves the basic fundamental constitutional questions.
If you create a new system of law, and I emphasise by the way the 'new', because despite what you say Lord Lester, the fact of bringing the Convention into British law as you well know does change the constitutional arrangements.
And by doing so you create as I see it anyway, a new state-like arrangement and hitherto we have taken the view that it is best to subject such questions to the High Court of Parliament answerable to public opinion, rather than to give supreme authority over these things to a body which is not elected and which cannot be held to account. As I've indicated earlier, it already contains people who I think are very undesirable.
The Albanian judge for example worked as a prosecutor in the Albanian state under Enver Hoxha. The Romanian judge has worked in the Romanian government under Nicolae Ceausescu, the Ukrainian spent his entire career professing Soviet law in the Ukraine and I think worked for the Soviet ministry of foreign affairs.
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