Critically appraise the implementation of the European Convention on Human Rights in the UK.
Résumé de l'exposé
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 humanrights 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 HumanRights. 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 HumanRights Act 1998. We will focus on the implementation of Convention itself and not its protocols.
Sommaire de l'exposé
I) Implementation of the Convention
Extraits de l'exposé
[...] 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. [...]
[...] The UK has made a reservation concerning the right to education. The reservation made is in effect in domestic law under the Act. Concerning the implementation more precisely in UK, there is a uniform implementation. In Scotland the HRA came into force in 2000 and a special Act was elaborated and came into force in 1999. It is the Scotland Act 1998 which incorporates the ECHR for Acts of the Scottish Parliament and Executive but the Parliament is still sovereign. [...]
[...] SD, DP and T v UK  22 EHRR CD 148; Hautanemi v Sweden  22 EHRR CD 155. Kaplan v UK  4 EHRR 64. Amwr v France  22 EHRR 533. Loukanov v Bulgaria  24 EHRR 121; Jaggard and Brown v UK  24 EHRR 39. Times Newspapers Ltd v UK  65 DR 307. R v Inspectorate of Pollution ex p Greenpeace  4 All ER 329. Damages can only be awarded by specific courts or tribunals which have this ability. [...]
[...] This precipitated the enactment of the Prevention of Terrorism Act 2005 to replace Part 4 of the 2001 Act?. Indeed in the HRA it is said article 2 is accepted by the United Kingdom only in so far as it is possible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure?. In the SP v UK  23 EHRR CD 139 which involved the schooling arrangements of a dyslexic child, the European Commission took the view that in light of developments in the case law of the Convention, questions may arise as to whether the reservation is valid and, if valid, whether it is applicable to law which entered into force subsequent to the making of the reservation. [...]
À propos de l'auteur
DULAC L.RHDroit européenCritically appraise the implementation of the European Convention on Human Rights in the UK.