Legistlative Provisions and UK Courts

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Abstract: UK as a Western Liberal state could be rightly described as pro human rights actor in terms of its membership with the UNO and EU. Both the UN and UNO have enshrined Human Rights in its Charter and Convention respectively. However, until 1998 the UK did not have a separate legislation for Human Rights and one known reason for its long delay was found in its parliamentary supremacy concept which stresses that the Parliament is not bound by any other law and no law is supreme but only the Parliament is supreme. Nevertheless, even after the Human Rights Act was passed the question arose as to the enforcement of provisions of the Human Rights Acts. The question whether if parliament pass any law which is inconsistent with the provisions of HR Act could cause conflict between two purposes, in other words it is the question of rising what will be position of Human Rights enforcement? It is felt by many that the courts should be given powers to strike down legislations which are inconsistent with the Human Rights provisions. There are counter arguments for this. This research will focus on how the UK courts have interpreted certain legislations whose provisions have certain inconsistencies with the Human Rights and also to discuss the how the Parliamentary sovereignty and Human Rights enforcement works simultaneously Key Words :European Convention on Human Rights; Human Rights act of 1998; Bill of Rights 1688; European Communities Act of 1972; Parliamentary sovereignty; Parliamentary sovereignty and the UK constitution; Case Law Chapter 1 Introduction I focused to research about the history of the Human rights in the UK , and how the involvement of European Convention on Human Rights and also the interference with the act which was established in the Parliament with the support of case laws Human rights are fundamental freedom of every human that protects their livesIt gives the entitlement of Right to life despite the facts such as man or women, boy or girl, race or skin colour ,religion or background ,Human Rights equal for all people , which set out the basic requirements of human with freedom and dignity [1] There were no equal protection to all for their rights in early centuries by common law[2] Human rights international security was generally seen as rather speculative. The critical issues widely considered to be how far security interest permitted [3] Human rights protect every human from political, legal, and social abuses at national and international levels, it gives us protection from right to freedom of religion, right to a fair trial, the right not to tortured as such are the few of rights which are currently practice in many countries ,most of the rights exist in morality[4] When it comes to United Kingdom, The UK constitution were identified as an unwritten constitution, but it is best way of relate is partly written and wholly uncodified’ , whichdiscovered from several ways. Its principal source is law of statute this where laws passed by the UK ParliamentStatute law is particularly important for determining the powers and scope of governmentParliamentarysovereignty isof the most important principle in UK constitution.[5] European Convention on Human Rights According to the parliament check and balance ,individual liberties contrast to safeguarding and the importance attached to the democratic accountability of Parliament,comparatively little significance was attributed to the European Convention on Human Rights[6] There had been very little change in the British constitution before the United Kingdom’s accession to the European Community in 1973 Real power was concentrated in the government, subject to what has turned out to be a fragile system of checks and balances[7] European Convention was the key source for drafting domestic laws before the Human rights Act , European Convention was limited by the constitutional doctrine of dualism ,It filter the law from international law from the national law it was clearly mention in the case of Blackburn v. Attorney General[8] further it elaborated “ courts take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament” [9]. In the case of Attorney General for Canada v Attorney-Gen. for Ontario[10] “the making of a Treaty is an executive act, while the performance of its obligations, if they entail alteration of the existing domestic law, requires legislative action”[11] “considerations of parliamentary sovereignty require that treaties alone cannot alter the United Kingdom’s internal laws, for otherwise the government could evade parliamentary scrutiny of its proposals through the exercise of its treaty making powers Accordingly, treaties are not self-executing; to give rise to rights enforceable in U.K. courts their terms must be incorporated into an act of Parliament”[12] While the European Convention, as an agreement between national governments, imposed obligations on the United Kingdom in international law, it did not impose obligations on Parliament or the government under British domestic law [13] “The European Convention on Human Rights is the oldest of the international legal instrument purporting to guarantee Human Rights, it is also a unique system. Constituting The nature of the supervisory system operating for the European Convention on Human Rights has dictated that its evolution go ahead on human rights instruments operating under the auspices of the United Nations or those economic ,social and cultural rights instruments operating in council of Europe”[14]In addition Human rights act will not have any obvious effect on the relationship between the courts and theParliament, it have a real impact on the relationship between the courts and the executive as well as the relationship between government and parliament [15] The European Court of Human Rights had about 271 cases which was found by the end of 2010, those are violation of European Convention of Human Rights by the United Kingdom. The decisions of those cases also influence on the approach adopted by UK.It was potentially engaged conventional rights with regulation of activities [16] Thus far the research has analyzed convention curative rather than the preventive legislation however the Human Rights Act also involved in many occasions. This research ensures the rest of approach goes ahead with the related case laws for more findingsAsper the studies European courts on Human Rights will lead our judges to evaluate their role within the constitution, some of the most significant development in English Public law in recent years had been triggered by courtsIt ripple effect on wholly domestic legal issues is forcefully illustrated by House of Lords In the case of Pepper v Hart 1992 House of Lord overturned 300 years old rule in concluding that courts could legitimately refer to ministerial speeches reports in Hansard as guide to the meaning of ambiguous statutory language, judgment followed EU related case Picstone v Freemans 1991[17] The Convention did have some effect on the domestic law of the United Kingdom. For example, the Convention was used as an aid to interpreting ambiguous legislationthe Convention could inform the exercise of administrative discretion and, on rare occasions, the Convention was used in the development of new common law rulesBut these effects were limited. The rule of legislative construction allowing reference to the Convention did not supersede, and was often subservient to, otherin the case likeAttorney Gen v Guardian Newspapers Ltd (1987) , Attorney Gen v British Broad Corp (1981) Derbyshire County Council v Times Newspapers Ltd (1992) the European Convention also influenced the exercise ofjudicial discretion[18] In the case of Marshall v Southampton & S W Area Health Auth [1994) was discussed any act of Parliament found inconsistent with EC law and in such circumstances can grant injunctions against the Crown[19] I was discussed in the first chapter as introduction about the Human Rights and background of the European Convention on Human Rights and how it was influence to exercise the law with support of few cases Chapter 2 In the second chapter discussed about the statutes and mainly focus on the Human Rights Act as well as the act which was established before the Human Rights act of 1998 and how it was apply to the human rights and the sections of the Act and also other important Acts which was dealt the Human Right cases History of Human Rights in UK Human Rights act of 1998 is one of the most importance statues ever passed in UK which the act of Parliament was brought the rights set out in the European convention on Human rights into Domestic law of the United Kingdom .Which joins the other significant pieces of law in making up a large part of the UK constitution [20] In protection of Human Rights there is a strong intellectual tradition of opposing any enhancement of judicial powers, it has traditionally involve with different sources ,It safeguards individual freedom against unlawful imprisonment with right to appeal by the writ of habeas corpus, The scope of habeas corpus expanded further protection against arbitrary or unlawful detention [21]

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“Legistlative Provisions and UK Courts”

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  • Magna Carta is one of the most important statutes issued in 1215.
  • Bill of Rights 1688 – This set up the constitution monarchy

UK Bill of Rights This Commission on a Bill of Rights was established in March 2011 and is due to report by the end of 2012. It has also been suggested that the Commission could become deadlocked as its eight members are equally split between avowed supporters and detractors of the Human rights Act, it is comprised of eight white men and one white woman, with one Scot and no-one based in Wales or Northern Ireland[22] Protection of the individual rights Bill of Rights were procedural approaches before the Human Rights Act checks and balances, and the rule of law were clearly favored over the more substantive approach associated with a formal statement of entrenched individual liberties that are legally enforceable in the courts and supreme to ordinary legislation, late 1960s and early 1970s was the period deepening interest in emerging individual rights spurred a campaign ,Lord Lester and Lord Scarman for US style bill of rights led eminent figures , Until 1990 successive Conservative and Labour governments was resisted some proposals[23] No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, no will we go ahead with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land[24] In the UK, a reconsider of comparative judicial decisions in human rights cases is therefore particularly timely. The interpretation of the Human Rights Act 1998 will bring with it the issue of how far British courts will use jurisprudence from other countries to help in arriving at decisions on the interpretation of the Act[25] European Communities Act of 1972 At the same time, the constitutional consequences of joining the European Community were being felt. The European Communities Act of 1972 incorporated into U.K. law “all such rights powers, liabilities, obligations, and restrictions from time to time created or arising by or under” various treaties constituting the European Community [26] A series of cases established beyond peradventure that the United Kingdom’s domestic courts can suspend, refuse to apply, or declare unlawful any act of Parliament found inconsistent with EC law and, in such circumstances, can grant injunctions against the Crownbelow mention cases established beyond peradventure that the United Kingdom’s domestic courts can suspend R. v Secretory of State for Employment, ExparteEqual Opportunities Comm’n(1995) Transp. Secretory Ex parte Factortame Ltd (HL1990)R v Transp Sec’y, Ex parte Factortame Ltd (1991)Marshall v Southampton and S W Area Health Auth (1994)[27] Lord Lester stated “enhancing the role of the British judiciary in reviewing acts of Parliament and other measures, the United Kingdom’s experience in the European Union had”a profound impact upon the British constitution creating support for an enforceable Bill of Rights and for a written constitution.”By the time of the Labour Party’s electoral landslide under the leadership of Tony Blair in 1997, the United Kingdom was poised for a constitutional revolution. United Kingdom is undergoing its most important period of constitutional change at least since it joined the European Communities in 1973 ,since the great constitutional upheavals of the seventeenth century, The Labour government’s ambitious program centered on three reforms[28]

  1. Weakening of the influence of hereditary peers on proceedings in the House of Lords
  1. The devolution of important policy making powers to regional legislatures the Scottish Parliament, National Assembly for Wales, Northern Ireland Assembly established by the new government
  2. the incorporation of the European Convention on Human Rights into the domestic law of the UK

It was very challengeable to achieve these reforms for the government without disrupting the basic constitutional structure of United Kingdom more particularly, how to achieve devolution and incorporation of the European Convention while respecting the doctrine of parliamentary sovereignty. With devolution, this was accomplished by conceptualizing the regional legislatures as creatures [29] The Human Right Act 1998 It was debated in UK whether adopt bill of right since there were many proposal as alternative for the status within British constitutional system for individual rightsenumerated rights in the manner of the US Constitution was one option giving courts the power to declare any governmental action that is inconsistent with that charter unconstitutional and legally invalid and allowing the legislature to override such a declaration only by amending the charter with a supermajority vote. According to the conceptions of parliamentary sovereignty it was felt that a bill of rights which enjoyed fundamental and supreme authority would be too great a deviation from traditional Diceyan it was rejected the U.S model of entrenchmentThis bill was came to in Royal Assent in October 1998 but it was effective on 1st January 2000[30] The Human Rights Act of 1998 according to the government’s white paper explaining the Act’s purposes and describing its provisions “intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it”The Act does not go as far as the European Communities Act of 1972 in that it does not directly incorporate the European Convention into U.K. domestic law in the way the European Communities Act incorporated EC law into U.K. domestic law ,Instead, the Human Rights Act of 1998 identifies specific articles and protocols of the European Convention on Human Rights[31] “Convention rights” it embeds them as principles into U.K. law ,some of convention rights are prohibition of torture or inhuman or degrading treatment[32]

  • Right to liberty and security
  • Right to a fair trial
  • Right to privacy
  • Right to freedom of thought
  • Right to freedom of expression
  • Right to peaceful enjoyment of possessions
  • The right to education

Above are the few of the rights to enjoy Convention rights “without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status”[33] Legislation cannot be reconciled with Convention rights through the application of the rule of statutory interpretation set out in Section 3 The effect of a declaration of incompatibility differs depending on the source of the legislation being challenged. It was found to violate a Convention right, the court can declare the legislation void and unenforceable unless the subordinate legislation was drafted to conform to an act of the U.K. Parliament whose terms effectively, prevent, removal of the incompatibility [34] Remedial order then must be approved by a resolution of both houses of Parliament so fast track procedure act itself specified judicial review contemplated by the Human Rights Act is reconciled with traditional notions of parliamentary sovereignty. The ultimate decision whether to amend or repeal an act found by the courts to be incompatible with Convention rights rests with Parliament itself[35] The Human Rights Act and the Judiciary The relationship most profoundly affected by the Human Rights Act is the relationship between Parliament and the judiciary. While the Human Rights Act was debated in the House of Lords[36] Human Rights Act represents a potentially significant redistribution of power under the constitution from the political branches to the courts This development is not necessarily surprising, given the perceived breakdown in the delicate system of checks and balances that lies at the heart of the British constitution In augmenting judicial power ,a process that began with the United Kingdom’s accession to the European Community, the Human Rights Act helps offset the decline of the House of Lords, the weakening of the loyal opposition, and the marginalization of backbenchers as counterweights to the power of government ministers. [37] While the government in Parliament remains the most important power center in the U.K system power is much more widely diffused Whatever Dicey may have said a century ago, there is no longer a single ‘sovereign’ anywhere within our constitution. While parliamentary sovereignty remains the bedrock of the British constitutional system, the Human Rights Act is an important part of an ongoing reconsideration of what parliamentary sovereignty means. And this concept, like the British constitution itself, is proving even more adaptable than previously imagined. The process of conceptualizing parliamentary sovereignty no doubt began with the European Communities Act of 1972 and the United Kingdom’s commitment to be bound by EC law. While it may be that the United Kingdom’s experience associated with European integration has not managed to shake British loyalty to the principle of parliamentary supremacy ,The theoretical construct of parliamentary sovereignty will remain intact even as claims upon Parliament’s real power are made by the operation of legislation enacted by Parliament itself [38]

[1]John Rowe and Q.C David Hoffman ,Human Rights in the UK (2nd edn Oxford 2006) [2] Villiers Peter , Human Rights(1stedn 2001) page 9 [3]VojtechMastnyand Jan Zielonka , Human Rights and Security page 19,20 [4]Available at https://plato.stanford.edu/entries/rights-human/ accessed 10 March 2015 [5]Nicola McEwenBBC news (1 September, 2003) and https://news.bbc.co.uk/ [6]European Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocol No 4 in 1950 [7]The most important constitutional changes in the century before the European Communities Act 1972 were the Parliament Acts of 1911 and 1949 ,Parliament Act, 1949, 12, 13, & 14 Geo. 6, c . 103 (U. K ) Parliament Act, 1911, 1 & 2 Geo . 5 c . 13 UK [8] [9]With reference to the decision in the case ofBlackburn v. Attorney-Gen(1971) 2 All E. R. 1380, 1382 [10] [11]W. VicDouglas ,The Human Rights Act and the British Constitution and see John Wadham and Helen Mountfield, Blackstone’s Guide to the Human Rights Act 1998 at 2ndedn 2000 [12]Richard Buxton, The Human Rights Act and Private Law (2ndedn 2000) page 48, 49 [13]European Communities Act 1972, c 68 & 2(1) [14] [15]Donna Gomien and David John Harris Law and Practice of the European Convention on Human Rights and the European page 18 [16]Pannick and Lester David ,Anthony ,Human Rights Law and Practice London (2nd edition 2004) [17]Ian Loveland, Incorporating the European Convention on Human Rights into UK Law (1999) 52.1.113 [18]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 30 March 2015 [19]Marshall v Southampton & S W Area Health Auth (No. 2) 1994] Q B 126 (H L ) [20]https://www.tilj.org/content/journal/37/num2/Vick329.pdf [21]Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (2nd edn Cambridge 2001),page 3 [22] Hansard : The Commission has also faced criticism for its lack of diversity16 June 2011, HC Vol.1049-ii Q58 [23]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 2nd April 2015 [24]https://www.bl.uk/onlinegallery/takingliberties/staritems/21magnacarta.html accessed 3nd April 2015 [25]Christopher Mc Crudden,journal of legal studies,Oxford 2000 [26]European Communities Act, 1972, c 68 [27]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 5th April 2015 [28] abbit [29]House of Lords Act, 1999, c34, & 1, 2(2) (UK )Created by the Scotland Act, 1998, c 46, & 1(1) (U.K.).Created by the Government of Wales Act, 1998, c 38, &1(1) (U K) Northern Ireland Act, 1998, c 47& 4(5) (UK )Human Rights Act, 1998, c 42 (UK ) [30] https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 6th April 2015 [31]Human Rights Act, 1998, c 42& 1 [32]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 10th April 2015 [33]Human Rights Act, 1998, c. 42, & 1 [34] https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 12th April 2015 [35]Government of Wales Act, 1998 and107(1)(a)(b) (U K ) [36] Griffith, The Common Law, supra note 28, at 42( seen https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 8th April 2015, e-book page 365) [37]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 12th April 2015, e-book [38]https://www.tilj.org/content/journal/37/num2/Vick329.pdfaccessed 11th April 2015, e-book page 366

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