Human Rights Act
The extent to which the European Convention of Human Rights (ECHR) has been fully implemented in the UK legal system will depend firstly on the extent to which the Convention Rights have been implemented. Secondly, the extent to which the method of implementation has been successful in allowing the rights to be relied upon in the English court (Alston & Goodman, 2007, p. 55). Even though, the European Convention on Human rights came into existence in 1953, UK legal system started embracing the convention Human rights. This was not an easy process because there were a number of obligation and requirements that the UK citizens were to meet. The UK, unlike other member states of the European convention, was hesitant in absorbing and integrating the Human rights of the European convention into their domestic legal system. The above factors together with the rigidity of the Domestic legal system of UK frustrated the integration of the Human rights of the European convention into the UK legal framework (Great Britain: Parliament: House of Commons: Foreign Affairs Committee, 2006, p. 40).
The Implementation Process
The Human Rights Act 1998, which came into existence on October 2000, had a substantial effect on the implementation of the European Commission of Human Rights in the UK legal system. One of the vital objectives of the Human Rights Act 1998 was to allow some of the rights of the European convention to apply in the domestic courts of the UK (Mowbray, 2012, p. 43). Before the enactment of the Human Rights 1998, citizens of UK had many structural difficulties in filing appeal cases in the European courts due to the legislative requirements from the domestic courts. Thus, the Human Rights 1998 wanted to bring some of the European Convention Rights home, rather than in the European Courts of Human Rights. The Human Rights 1998 was a massive boost to the implementation and integration of the European Commission of Human Rights in the legal system of the UK. However, it is essential to note that the UK was not going to accommodate all sections of the European Human Rights within their legal system. The UK was selective in the Rights that were permissible and applicable in the domestic legal system (Alston & Goodman, 2007, p. 78).
Choice of Rights
The legal system of the UK has been selective in admitting the human rights provisions found in the European Convention of Human Rights. However, presently, the Government of UK has ventured into the investigation of the creation of a UK Bill of Rights that incorporates the obligations of UK under the European Convention on Human Rights. The purpose of this venture is to ensure and facilitate the implementation of the Convention’s human Rights in the UK law. Despite the fact that the UK has not allowed all human rights provisions into the domestic legal system, the state intends to support the full implementation of European Conventional Human Rights to boost efforts of protecting UK citizens within the European Union.
An example of a case that illustrates the ambiguity of section 2 is in the case of R (on application of Ullah) v Special Adjudicator, in 2004. According to Lord Bingham’s analysis, it was not the intention of parliament to offer courts in UK with the power to give a relatively generous range than the ones already existing in the jurisprudence of the Strasbourg Court. According to him, this would be an equivalent of shifting from the convention Human Rights into free-standing rights created by the domestic courts. This illustrates of the constraints that face the implementation of the European convention on human Rights in the UK courts. Domestic courts experience constraints when they have to make certain critical decisions, since the arguments for the decision by the domestic court may be ventilates in the European Convention on Human Rights (Mowbray, 2012, p. 102).
Implementation of Section 2
The use of Section 2 the European Convention on Human Rights has come under criticism for being vague. It remains unclear whether the domestic UK legal system should be a subordinate to the provisions Section 2 of the European Convention on Human Rights. At one time, the ex-Lord Chancellor Lord Irvine stated that UK judges erroneously assumed that they had a mandate to comply with the European Court on Human Rights, thinking that the UK legal system was a subordinate to human rights provisions of the European convention. He, however, refuted this error and said that the final decision lied with the UK courts (Baderin & Ssenyonjo, 2010, p. 90).
Implementation of Section 3
Section three of the Human rights required that all primary and subordinate legislation was to be in accordance and with the convention rights. This provision in section three outranks the doctrine of precedent. An inferior court may refuse to obey a precedent from a superior court if it feels that the precedent is not compatible with the European convention on Human Rights. This section requires the domestic judicial system to operate on a thin line between legislative interpretation and alteration. Courts must interpret legislation in a manner that complies with the European convention. For example, in Ghaiden v Godin-Mendoza, the House of Lords extended the protection under the Rent Act 1977 to couples of the same sex. There are instances when the domestic courts in UK have applied scrutiny on the primary legislation. In some high profile cases, the courts have found inconsistency and incompatibility of Acts of parliament and the convention rights under section four of the act.
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