Sources Of The Law Essay

823 words - 4 pages

Human Rights Act 1998 and European Communities Act 1972

In the aftermath of World War 2, many of the victorious Allied countries began taking steps to ensure cooperation in the recovery from the war as well as preventing the occurrence of such an event in the future. In 1950, the UK helped in the drafting of the European Convention of Human Rights (ECHR) which sets out the freedom and rights of the people. Since 1966 but before 2000, British citizens were not able to bring a legal action in the UK courts should protected human rights are infringed. Rather, they had to file a legal complaint in the European Court of Human Rights (ECtHR) in Strasbourg. The first notable action to raise awareness on the need to introduce human rights in the UK was a paper written in 1968 by Anthony Lester entitled Democracy and Individual Rights. Supports for the incorporation of the ECHR were also voiced from judges past and current including Lord Bingham in his article, the Law Quarterly Review 1993 . After the 1997 general election, the new Labour Government introduced a White Paper entitled Rights Bought Home: The Human Rights Bill and the Human Rights Bill 1997. Finally, the Human Rights Act 1998 was enacted and came into force on 2 October 2000.

The Human Rights Act 1998 (also known as HRA) set out the ways which the rights under ECHR will be enforced within the UK. Under section 2 of the HRA, any domestic court must take into account any judgment, decision, opinion, or advice of the ECHR as far as the court see fit that the question at hand is relevant to the Convention. Section 3 of the HRA stated that all existing laws, be it primary or delegated legislation, must be interpreted, as far as possible, to give it effect which is compatible with the ECHR. This section does not work retrospectively as s.3 (2) (b) and s.3 (2) (c) made it clear that the HRA does not affect the validity of existing legislation or enforcement of legislation. If a judge cannot interpret a law to give effect to human rights, he can make a declaration of incompatibility and pass a judgment entirely devoid of the consideration of human rights.

The effect of the HRA can be seen in the case of Mendoza v Ghaidan where the Court of Appeal applied s.2 of the HRA and used the case of Petrovic v Austria (2001) instead of a domestic case Fitzpatrick v...

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