Critically appraise the implementation of the European Convention on Human Rights in the UK.

Thèmes abordés

Implementation European Convention Human Rights in UK.

Résumé du document

Very soon, the Parliament has elaborated texts in order to protect rights of individuals and to fight against the discretionary and excessive powers of the Monarchy. So, certain fundamental texts as the Magna Carta, the Bill of Rights and Habeas Corpus were adopted. It was the beginning of a protective legislation. Nowadays, the protection of the human rights and freedoms is an international preoccupation. Due to international organisations initiatives, many important texts were ratified by a lot of countries such as the European Convention of the Human Rights. This Convention was prepared by the Council of Europe in 1950. Although the UK was among the first to sign up the Convention, even it implemented it a long time after. Indeed, it was ratified in 1951.
A Convention has only a power of persuasion; it is not a binding instrument. So, before the ratification, no implementation was required neither changes in UK domestic law. But with the ratification in 1998, the UK had to implement it; this was done with the Human Rights Act 1998. We will focus on the implementation of Convention itself and not its protocols.

Extraits

[...] Even though many Member States, like UK have adopted the Court's approach, they can adopt their own. Designated courts are the House of Lords, the Court of Appeal, the High Court, the Judicial Committee of the Privy Council, the Courts Martial Appeal Court and in Scotland, the High Court of Justiciary or the Court of Session. In the case of doubt concerning the making of a declaration, the Crown can be informed. The term “public authority” is not mentioned in the Act but it refers to the courts, tribunals and person certain of whose functions are functions of a public nature”. [...]

[...] In order to deal this issue, the case law of the Convention is important. It is essential to underline that even if there is a lack of legislation; the individual will not be affected by that and is entitled to have a remedy. Public authorities are dealt in the section 6 of the Act and it clearly mentions that unless to give effect and protect the primary legislation, all actions or consequences which could be incompatible with the Convention rights is completely unlawful. [...]

[...] It was affirmed by the Convention in the Ireland v UK[18] case. Although the notion of state responsibility is important, we must also take into account the notion of which is mentioned under the Article 34 of the Convention and the section 7 of the Act[19]. Even if it is not defined, the jurisprudence of the Court and the Commission responds to many issues about the victim such as the territorial reach[20], the persons entitled to bring proceedings[21], those directly affected[22], the non requirement of detriment or prejudice[23], those at risk[24], the risk of serious and irreparable harm[25], surveillance cases[26], indirect victims[27], representative actions[28], companies[29], limitations[30] and death[31]. [...]

[...] Derogations are provided by the Act under the Article 15 because it is possible to derogate from the Convention when it concerns a time of war, a public emergency such the protection of the public health, public security, public morality and public policy. Moreover, the “Convention rights are subject to designated derogations”. In order to give effect to the derogations, the UK system consists in approving the derogations in each house thanks to a resolution. The deadline is forty days but when it is in effect it must be renewed every five years. One derogation applies; it is about the prevention of the terrorism[41]. [...]

[...] Indeed, the Convention's principle provides that individuals have enforceable right to compensation”. Damages are evaluated in relation to the Convention's principles under its Article 41[35].The type of the remedy is determined in relation to the facts of the case. So the courts have the ability to make decisions for breach of a Convention right and to go to the Strasbourg Court is not required for individuals. Indeed, that permits having a quicker and cheaper proceeding. The Court will be only the last resort for individuals. [...]