Seminar 3: EU Law, the separate European Convention on Human Rights and Fundamental Freedoms 1950 and the UK Human Rights Act 1998 Flashcards
Council of Europe:
Administers European Convention of Human Rights and the European Court of Human Rights, 47 members, members don’t have to be members of the EU e.g. Turkey and Russia
European Union:
Established as a trade union, 28 members
What impact has the UK’s membership of the EU had on the doctrine of Parliamentary Sovereignty?
EU law is supreme. As EU law is supreme over domestic law in practice EU law must always take precedence. If conflict occurs the UK law would be disapplied whilst the EU law would be applied.
What are the similarities and differences between the way EU law and the separate European Convention on Human Rights currently take effect in UK law?
Not binding over domestic courts. Section 2 of the HRA integrates European Convention of Human Rights into domestic law. Under Section 2 of the Human Rights Act 1998 courts are placed under an ‘interpretive duty’ – must consider the case law of the ECHR when making decisions in cases that involve human rights claims but does not mean Strasbourg case law is binding over domestic courts.
The HRA and the legislative process:
Since the passage of the HRA, every act of Parliament must enter an additional process of pre-legislative review. It is referred to the JCHR who decide whether the Act conforms to the requirements of the ECHR.
HRA and the Public Authorities:
HRA requires all public authorities of a state not to infringe upon Convention Rights (s.6 HRA.) This means that a decision of a public authority can be challenged if it does infringe upon the convention rights of an individual.
Employing the Convention Rights:
ECHR can be used as both a ‘sword’ and a ‘shield’. ECHR can be used to bring proceedings against a public authority on the grounds that their decision breached convention rights. Individuals can rely on convention rights to protect and defend themselves in a legal proceeding. If a court finds it is not possible to reconcile an Act of Parliament with the ECHR, they cannot overrule the Act of Parliament.
Declarations of incompatibility:
S4 HRA gives certain courts the power to declare a statue is incompatible with the ECHR. Declaration of incompatibility does not affect the statutes validity – it is still in force.
HRA and Parliamentary Sovereignty:
Following S4, it can be said that the HRA has a limited legal impact upon the doctrine of Parliamentary Sovereignty. The courts cannot strike down legislation like in the US. Instead under s3 they must interpret legislation in accordance with the Convention Rights. This power is inconsequential. Perhaps the true impact of the HRA is political – courts can send a strong political message to Parliament that it is in breach of human rights laws and must change the law or risk being thought of poorly on the international stage.
The Interpretive Duty:
All domestic courts are placed under what is called the ‘interpretive duty’ by s3 HRA. This means that all courts must read primary and secondary legislation in a way that is compatible with the ECHR.
