4.2 Effect of the ECHR on English law prior to the Human Rights Act 1998 The Human Rights Act 1998 (HRA) received the Royal Assent on 9 November 1998, and the main provisions were brought into effect on 2 October 2000. However, the UK had by then been a signatory to and had ratified the ECHR for nearly fifty years. What was the effect, if any, of the Convention on UK domestic law? We have already noted the supremacy of Parliament as the main law-making body in the UK. Under English law international treaties do not become part of domestic law unless and until some
3.6 The terms of the European Convention on Human Rights In 1952 the HCPs agreed that the European Convention on Human Rights should be extended to cover additional rights and freedoms. At the time of drafting the original treaty there were heated debates about whether rights relating to property, education and democratic participation were fundamental human rights. As a compromise these were omitted from the original treaty. Their later inclusion was achieved by an instrument known as a protocol, which, although much shorter than the original ECHR
3.2 What is the European Convention on Human Rights? In the aftermath of the Second World War there were public disclosures of huge numbers of cases of brutal, inhuman and tyrannical treatment of people, frequently within the civilian populations of occupied countries. Many serious concerns arose about the way in which millions of people had been mistreated at the instigation of or with the connivance or concurrence of government. There was almost universal disgust and condemnation at the disclosures made, together with a general recognition th
3.1 Part B overview The European Convention on Human Rights was introduced in unit W100_4 Europe and the law, and through your previous studies you have probably already considered cases (such as that of Diane Pretty) where articles of the European Convention on Human Rights were under debate. Here you will look at its legal implications in more detail. You will consider how the European Convention on Human Rights came into being, why it was considered necessary to create such an instrument, what are its
2.4 Summary of Part A Part A explored the development of humanitarian and human rights law. The development of new democracies with written constitutions laid the framework for the general recognition of rights such as freedom of speech. General principles emerged: certain rights exist because a human being is entitled to ‘humanity’; those rights cannot be denied or taken away; recognition of the rule of law. 2.3 The Red Cross Humanitarian law was another area of international growth in the recognition of human rights. It gathered pace in the nineteenth century due to the work of Henri Durant, a Swiss philanthropist. He witnessed several battles where great atrocities were committed by the armies of nation states. These experiences led him to attempt to establish a permanent system for humanitarian relief, where private societies would supplement the work of army medical corps of nation states. In 1863 a conference 2.2 Slavery reform Some of the first international concerns over human rights, as they would now be recognised, were expressed about slavery at the end of the eighteenth century. Somerset's case in 1772 challenged the acceptance of slavery in the UK. This case is regarded as a turning point, as statutory abolition followed in the UK. Out of this changing social, political and legal attitude towards slavery grew a movement which sought to prohibit slavery internationally. It was not possible to secure the freedo 2.1 Treaties, conventions and constitutions International human rights are part of a much wider area, public international law, which in broad terms encompasses law relating to the legal rights, duties and powers of one nation state in relation to its dealings with other nation states. These rights, duties and powers are set out in international treaties or conventions. Such treaties and conventions may be global in their application or restricted to certain regions of the world. Reference to a work on international human rights treati 1 Unit overview This unit will look at the concept of rights in their broadest sense: a freedom to do or be protected from something; a claim to do or enjoy something; a power to do something which affects others and not to be challenged over that use of power. This concept of rights defines the position of an individual and does not consider collective or majority rights. As you may already know, the subject of righ 8 Review of learning outcomes After studying this unit you should be able to: Part A understand the European Convention of Human Rights system of rights and the mechanism set up for their protection: You have seen that the ECHR emerged from the social and political aftermath of the Second World War. It emphasises individual rights and tries to provide a balance between specific individual and collective rights. Som 7.3 Summary of Part F The constitutional dimension of the EU has been continuously developing. It is influenced by changes both in the membership of the EU and by a desire to develop and strengthen the EU. Part of this development is reflected in the negotiations towards the adoption of a new EU constitution. This part of the unit has given you the opportunity to appreciate the complexity of this process. Whether the proposed new EU constitution merely consolidates existing legal provisions or whether it brings ab 7.2 An EU constitution: moving the debate on In the next activity you will be able to build upon the previous one and observe the way in which the debate on the new EU constitution has progressed and moved to another level on its way to ratification. 7.1 Towards a constitution The European treaties establishing the European Union: create an institutional structure for decision making, and set out the freedoms of the individuals and the limits of the decision-making powers over the citizens. The treaty establishing a constitution for Europe was signed by the member states in October 2004. However, at the time of writing (2005), the process of ratification is in abeyance following the rejecti 6.6 Summary of Part E In Part E you have had the opportunity to appreciate the relationship between the EU law and the domestic law of the EU member states. The principles guiding this relationship do not form part of the founding treaties of the EU but have been distilled by the ECJ from the aims of the Community as set out in those founding treaties. You have been introduced to: the principle of supremacy: in cases of conflict EU law prevails over the domestic law 6.5 The principle of subsidiarity This is defined in Article 5(1) EC and 5(2) EC. It requires decision-making bodies with responsibility for larger areas to perform only those functions that decision-making bodies with responsibility for smaller areas cannot fulfil themselves. For instance, the Treaty requires the Community to take action ‘only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States …’ and can ‘by reason of the scale or effects of t 6.4 The principle of proportionality This principle has been developed and refined by the ECJ and is also covered by Article 5 EC: Any action of the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. However, given that the objectives of the Community are defined very widely in Article 2 EC, the principle of proportionality is not always the easiest tool for curbing EU legislative enthusiasm. 6.3 The principle of direct effect Does the principle of supremacy of EU law mean that the ECJ is the only court in charge of applying and enforcing EU law? The answer to this question is ‘no’, which is the consequence of the principle of direct effect. Certain provisions of EU law may confer rights or impose obligations on individuals that national courts are bound to recognise and enforce. This means that the national courts must apply the directly applicable EU rules and must do so in priority over any conflicting 6.2 The supremacy of EU law Whenever there is a conflict between the provisions of EU law and the provisions of the domestic (national) law of a member state, then EU law will prevail. This is a principle which was developed by the ECJ as the relationship between domestic and EU law is not clarified by treaty provisions. This is an important principle, as it ensures the proper functioning of the EU. If an EU member state had the power to annul EU law by adopting new domestic (national) law which was in conflict with the 6 1 The relationship between EU law and domestic law It is important to understand the relationship between EU law and the domestic (national) law of the EU member states. This is guided by a number of important principles. Except for third party materials and otherwise stated (see terms and conditions), this content is made available under a 5.4 Summary of Part D Table 3 summarises the main aspects of Part D.
Activity 7 A snapshot from the EU constitutional debate (2)
Table 3 Types of law and their effects
