Friday, 17 June 2011


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This essay will examine the extent to which the Human Rights Act 18 has incorporated the European Convention on Human Rights. The focus of the essay will analysis the nature of section Of The Human Rights Act assessing the new obligation placed on judiciary to incorporate The European convention Articles articles, and also highlighting both the problems facing individuals in seeking redress by depending on section as seen in GET CIATION and also the problems facing the judiciary in the application of section .

The Implementation of the Human Rights act in 18 was thought to be a major break through in both European and domestic law. It final gave the convention rights curtailed in the European convention a legalistic approvable and statue states, whereby individual’s rights were greatly enhanced. The Human rights Act 18 marks a significant constitional change in relation to citizens awareness about rights, and their protection by judges in the domestic court. .Likewise Lord Irvine of Lairg on October clearly illustrated its objective I Introduced the human rights bill into parliament. It will incorporate into domestic law of the united Kingdom the rights and liberties guaranteed by the European convention on human rights (SEE WRRITTEN PAGES FOM THE SATURDAY LABELLED AHAY. The objectiveness stipulated in the white paper prior to the incorporation of the Human Act highlighted the potential impact the act could have, it clearly wanted to promote the opportunity for people who believed there human rights had been violated a clear opportunity to seek redress. We believe that the time has come to enable people to enforce their Convention rights against the State in the British courts, rather than having to incur the delays and expense which are involved in taking a case to the European Human Rights Commission and Court in Strasbourg and which may altogether deter some people from pursuing their rights (Bringing rights Home)

At the forefront of the Dianne Pretty case was how she challenged the compatibility of the Suicide Act 161 with certain provisions of the European Convention on Human rights .Were asking the judges to interpret the legislation we have at the moment so that is compatible with her rights under articles 8, and of the European Convention on Human rights . the focus was based upon section (1) Of the Suicide act which states A person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide, shall be liable on conviction on indictment to a term not exceeding fourteen years . The case of Pretty challenged the act believe ling it was incoherent with convention rights The DPP rejected Mrs pretty claims that the act was incompatible to the human rights convention likewise the The House Of Lords, after six weeks of considering an appeal by Mrs Pretty, unanimously affirmed these findings . The decision received wide spread criticism A.C Grayling, an associate of Mrs pretty clearly highlighted the problematic and rigid nature of section thus being the incorporation provision in the act of Human rights and questioned the judges interpretative capacity to incorporate convention rights it was the narrowest, most conservative and illiberal_. possible, one which would retard the human rights regime for decades (Morris,66) . It is therefore important to analysis the effectiveness of section . The Dianne Pretty case clearly highlights the complications an individual faces in establishing the compatibility of legislation in conjunction with the human rights act.

By virtue of section of the Human rights act it imposes a direct duty that the judiciary construe and construct legislation so that it is compatible to the convention articles. “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights Prior to the legislation being passed there was a certain amount of ambiguity as to the extent to which judges would exercise the law, whether for example we would see a more flexible approach to statutory interpretation or would we see the implementation of the safeguard contained in section 4 by rendering legislation in a incompatibility capacity the declaration of incompatibility which maybe issued by a court when it is unable to read legislation in a way that is compatible with all convention rights (Stone,00,514). Many commentators stressed there concerns at section , pivotal to there worries was the systemic predicament of parliamentary sovereignty and its power over the judiciary whos role it is to incorporate such convention rights as, as Professor Jay Grittith argued judges are ill equipped to assume the mantle of guardian of individual rights in the face of the executive power and parliamentary sovereignty (Barnet,000,p7).

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In theory the judiciary are placed under a obligation to ensure that legislation is compatible with the convention, as Lord Styn in R v A( 001) UKHL; 5, para 44 001 All , stipulated `The interpretative obligation under section . of the 18 act is a strong one. it applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings_..A declaration of incompatibility is a measure of last resort. it must be avoided unless it is plainly impossible to do so. The nature of s has created a strong interpretive obligation; the UK government must attempt to secure legislation in conjunction with the human rights convention as Lord Irvine said. The courts will be expected to use, strong interpretive techniques which may include the implication of appropriate language into apparently unambiguous provision (Irvine, 18,p8).

Prior to the implementation of the Human Rights Act and more importantly before the section prerogative of incorporation, the courts application of the European convention was substantially limited, the courts were limited to use the convention as a basic guide to statutory interpretation and was fundamentally only applicable where there was ambiguity in a piece of legislation. the section has undoubtly altered the approach which pre incorporation had failed to deliver. before the act, courts were permitted use the convention as interpretative tool where the supposed intention of an Act of Parliament was ambiguous, now, the courts are under an express statutory duty interpret legalisation so as to accord with the propose of the convention” (page 8, Waldham Mountfield BOOK FROMN JMU)

Likewise the impact of a breach or alleged violation was minimal A breach of the convention was said to have no greater significance than a breach of foreign law (PL,000,Bennion). The white paper prior to the Human rights act clearly illustrated its intention to radically reform statutory interpretation. `the rule of construction created by section of the act clearly Goes far beyond the present rule which enables the courts to take the convention into account in resolving any ambiguity in a legislative provision. The courts will be required to interpret legislation so as to uphold the convention rights (Rights brought home the white paper para.7/8).The rule of statutory interpretation in section of the human rights act now requires that both primary and subordinate legislation must as far as it is possible be given effect to be compatible with convention rights it now goes beyond the conventional approach to statutory interpretation is an emphatic exhortation by the legislature (8xp). In Donoghue V Poplar Housing Association(001) WLR again LORD BOLLOcks demonstrated Ted the role of judiciary and the obligation under section It is difficult to overestimate the importance of section_.The courts interprets legislation usually its primary task is to identify the intention of parliament. Now, when section applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section (ZYS). There is clear evidence that the human rights act has began to influence judicial decision making, were previous to the passing of the convention rights into legislation it was rare the scenario now is rather different Section of the HRA can be a radical tool, as the cases of Offen and R v A demonstrate, and pre- HRA days of searching endlessly for an ambiguity in legislation before resorting to the convention are clearly over (8XP page 644)

The nature in which section is constructed clearly created problems in the incorporation of the convention rights betweenStriking the right balance between the original intention of Parliament in enacting the legislation being construed and its subsequent intention in enacting s. of the HRA has not been easy . One of the problematic elements of section is the requirment of interpretation in which section is enforcing, and the brake implied by the term so far as it is possible to do so, judges are faced with difficulties in there approach to section .. There seems to be two phrases in the courts to the approach of section as already seen the case of R v A is pivotal to the exposure of the usage of the section . Lord Steyn firstly stipulates that in the reading of a legislation in order for it to fall within the ambient of the Convention on Human Rights it will involve the reading down of legislation It will sometimes be necessary to adopt an interpretation that is linguistically strained. The techniques to be used will not only involve the reading down of express language in a statute, but also the implications of the provisions (Starmer Q.C,Page 17). Tom sergeant memorial lecture on December 16, 17 Lord Irvine of Lairg, again reaffirmed the scope of the judiciary interpretation by straining the meaning of words or reading in words which are not there (page 88 interprtaion of 1) however he did sound caution the construction rule the courts must strike a balance going neither too far nor not far enough

Likewise in the case of Popular Housing and Regeneration Community Association Limited v Donoghue (0001 EWCA civ 55) showcased the strong interpret nature, although the plaintiff was un successful in using the section three provision, lord woolfs descending comments were particular intriguing as to the nature of interpretation. The interpretation section could feasible enhance judiciary creativity and decision making whereby it can be argued that judges have the potential power to make law and therefore surpassing there role as acting in an interpretative capacity although lord woof refutes such claims section does not entitle the court to legislate, its task is to interpret (8xp 657) and again in the Donoghue it was reaffirmed Section does not entitle the court to legislate task is still one of interpretation, but interpretation in accordance with the direction contained in section ” its case this is dubious as he later pronounced were necessary in order to obtain compatibility judiciary can radically alter this would suggest a legislative role and suggests the term `possible in section does not just been linguistically possible. And therefore undermine the role of the judiciary which does not acquire them to make law. With straining the meaning of words and reading in words which are not there clearly is problematic here we are in the realm of opaque metaphor. What happens when the meanings of words are strained? can they be stretched without straining? Can they be strained but not to breaking point......but it would certainly put a considerable strain on the original meaning” PAGE 7 MARSHALL BNP. this would inevitable lead to inconsistency in decision making and could clearly change the original meaning of the legislation. The judicry would seem uncertain how to executive the interpretive construction rule and inevitable lead to unclear and inconsistent decisions. There is clear scope that the meaning of piece of legislation to one judge can have a totally different meaning to another and there different perceptive on implementing words will lead to and array of magnitude of different perceptive on roles the judiciary play

There is clear scope for abuse of power by clearly reading words into legislation which arnt there could clearly provoke an increase in legislation made ultra vires. Could s (1) be used to read words into primary legislation so as to render legislation under ultra vires from October 000 even if that legislation was not unlawful previously

In lord hope alternative exposition in the same case of R V A however, he pointed towards a approach which had greater deference to parliament. The plain intention of parliament in enacting the legislation being construed should act as a brake on s of the human rights act interpretation (Starmer,17) he projected the importance that section does not permit the implementation of reading act to achieve accountability if it clearly contradicts the plain intention of parliament Lord hopes perceptive was reaffirmed in the case of R v Lambert(001). Likewise in the case of Re s; Re W(00) UKHL 10 the House of lords clearly condemned the actions of the Court of Appeal for exceeding the amount of interpretative creativity curtailed in section The limits of re-interpretation sanctioned by s of HRA were clearly exceeded by such Judicial innovation

The main difficulties in enacting the bill of rights which enjoys fundamental and supreme duties lies in the fundamental traditional diceyan concept of sovereignty (Bennet, page 8). In the case R v Lambert it illustrated that judges were clearly not empowered to overrule the power of parliament the case highlighted the importance of preserving the sovereignty of parliament section (1) preserves the sovereignty of Parliament. It does not give power to judges to overturn on the very point at issue by the legislator (658 8xp). With the judiciary continuing deference to parliament very few individuals wishing to use the Convention as legal stance as Preety did will continue to experience problems as clearly the convention still remains subordinate to primary and secondary legislation. GET Quote TEXT BOOK. L.J Sedley sounded caution as to the limits to section The s imperative is not anything as revolutionary as strict constructionists have suggested. Once it is acknowledged that parliamentary intent has always been a deferential yet fictional account of the meaning of the text......s ceases to be a supplanting mechanism and settles as a strong cannon of construction

Section S () of The Human Rights Act provides a clear safety net to preserve parliamentary sovereignty and illustrates the minimal impact the convention has, the section does not effect the validity, continuing operation or enforcement of any incompatible legislation , Therefore If Mrs Pretty had been Successful in her appeal to suggest that the Suicide was clearly incompatible with her convention rights, this would have no bearing on the continuing execution of the Suicide Act, This some what undermines the Power of the Convention Rights that incompatibility legislation will remain legitimate regardless of its violation on the Human convention rights.

This is a deeply mysterious provision posing various problems of interpretation likewise Francesca Klung also raises caution as to the nature of section history shows that there was much vagueness and confusion in the minds of the acts promotes about the intended meaning of the rule (what interpretation possible under 1 page 88), Marshall, clearly sees section as a some what vague and ambiguous provision. The problematic nature he believes hinges around the terms expressed in section (1) `Read and given effect He believes the wording and the inclusion of reading and giving effect he believes have totally different functions and enriches two judicial tasks which provide the judiciary added problem and extension to there designated role this he believes ads to the confusion of the meaning and implication of compatibility it can have paradoxically different senses (Page 81,1, two kinds of compatibility) the reading and giving effect can offer to contrasting resulting ensuring legislation is compatible reading legislation as if it were compatible with the convention upholds a rights claim. In the second sense, giving effect to legislation as being compatible with the convention defeats a rights claim (81,two kinds of compatibility). The judges are faced with problems and must adhere to both parts and face confusion as to how they perceive each word , which further leads to inconsistency. MOVE TO THE QUOTE ABOUT POSSIBLE MEAN

The term ‘possible’ curtailed in section (1) also prompts ambiguity further causing confusion and added pressure and complex on judicial interpretation, as many find the phrase “so far as it possible to do so” unclear as to what is to be understood by it “What is ‘possible’ supposed to mean here? Does it mean corresponding to the literal meaning, or does it allow for a strained meaning and if so to what extent” . Geoffrey Marshall adds some light on the potential intention of the term possible were it could be “when the normal rules of construction are applied, it uis possible fairly to say that a legislative provision has a particular meaning and if that meaning is compatible with the convention it should be interpreted and if not, not” , however if this was the intended purpose of phrase in section it could clearly undermine the section “but if that is what it means, clause is redundant. On the other hand, if clause is not redundant, then we do not know what it means”

There also seems to be a deviation from the stipulated role of section contained in the white paper bringing rights home the courts will be required to uphold the convention rights unless it is impossible to do so As Marshall again demonstrates At this point a startling paradox suggests itself about the wording of clause ,. What it commands is the opposite of what might be assumed from a reading of the white paper . By reading the white paper it would suggest that a perspective plaintiff seeking redress under the human rights act might assume the courts would lean towards holding a convention right, as this would prevail over legislation were the statute is incompatible with the convention. However instead of the section allowing this it however, operates more as a hindrance as the judiciary will read it so the legislation becomes compatible with the convention rights, by doing this the actual convention right which plaintiff wishes to dependent upon is overlooked, and becomes lost in the judiciary commitment to read legislation so it is compatible with the convention What clause urges the courts to do, whenever possible, is to find that the legislation is compatible with the convention rights. If it is so compatible, the convention has no bite on the legislation and the litigant seeking protection under the convention not provided for by the legislation loses his case (p170). Which some what undermines the entirety of its inclusion ion domestic law . This was the case with Mrs preety there objective was that have her acceptance that the convention was incompatible we cant ask for change in the law a change in the law that’s something the court can do but it can issue certificate of incompatibility saying that the legislation is incompatible with the Human Rights Act in which case, fast track legislation may be brought into play but by reading the convention compatible reduces the chances of declaration of compatibility which is often the plaintiff goal.

There is concern expressed that in the construction of section it failed to recognise the British method of Statutory interpretation, which Francis Bennion refers to as the “Global method”, “The drafting overlooks the crucial fact that the Global method requires a two stage test approach, it is not a matter of deciding at first sight whether words are ambiguous or obscure, and if so going on to decide what they mean” . Section has added an extra obligation creating a multiplex system in which judiciary must operate within , This therefore can have a adverse effect on law and place unnecessary rigidity on the backs of the judges “Typically the provisions of the act of parliament itself have first to be tentatively construed, perhaps with difficulty, and then the result has to be tested against an ‘upper’ text such as the convention……..legal certainty, and ability to find out what the law is, inevitable suffer”

remember section

Section and WHY IT should be made we dont neeed it anyway, multiplex system , doesnt take into account of previous rules of statutory interprattaiion

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