Incompatible legislation and Human Rights in the UK

Introduction

First of all, much debate in the United Kingdom amongst commentators and some judges in relation to the human rights are currently being generated.

The amalgamation of the European convention on human rights was introduced by Tony Blair (prime minister of the United Kingdom from the 2nd of May to the 27th June 2007) who led the government in 1998, and more importantly it was known as Human Right Act 1998.

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The EuropeanCourtofHumanRightsin Strasbourg is a national court, formed by the European Convention on Human Rights, which provides legal remedy of final alternative for persons who feel that their human rights have been desecrated by a contracting party to the Convention.

In addition, I would like to state that it is against the law for public authorities to act contrary to the convention rights. Parliamentary Sovereignty which has however been elemental to the constitution of England and Wales since the 17th century had an important role when it came to the realization of the incorporation of the European Court of Human Right (ECHR) into the United Kingdom law but the convention rights come into force through an Act of Parliament.

Second of all, The Human Right Act section 6 also states that public authorities including courts must take actions attuned with definite Convention Rights as enforced in the European Court of Human Rights (ECHR). Meanwhile, the Human Rights Act empowers the judiciary courts to interpret both delegated and primary legislations which is very well incompatible with the Convention Rights.

Incompatibility under section 4 of the European Court of Human Right only comes in place when the domestic legislation is in conflict with the ECHR, interestingly it does not affect the validity of the legislation and the right to legislate contrary to the human rights are kept because no one can override any law at all which is made by the parliament, for an incompatible legislation to be set aside and stop to exist some amendments have to e made by the parliament.

Incompatible legislation will have to go through the parliament for amendment and scrutiny. There would have been a massive entrenchment on the citizens’ individual human rights because protective mechanism would not have taken place within this period as was in the case of GC & C v Commissioner of Police for Metropolis. This is an arbitrary policy which fails to permit consideration of personal factors and it as well permits imprecise custody of samples received in state of affairs where neither of the claimants have been accused of any offence or convicted of any offence.

Although section 54 of the Police and Criminal Justice Act 2001 Section 82, which was amended states that fingerprints and DNA samples can be retained and used for the purposes related to the prevention and detention of crime investigating offences or conducting persecutions.

Furthermore, Public authorities have a defence if legislation requires them to act the way they did in section 6(2), this was shown in the GC & C v Commissioner of Police for the Metropolis [2010] EWHC 2225, through the policy which the Chief Constable of police officers adopted, in cognizance to retain biometric samples, DNA and fingerprints for an unlimited period like was explained above, and it infringes individual rights.

Lastly, the introduction of the Human Rights Act is a development which is very well welcome because of its protection of individual convention rights. European Court of Human Right laws are not merged automatically into the United Kingdoms’ law simply because the United Kingdom is a dualist state unlike many continental European countries, which are ‘monist’. In dualist states a treaty ratified by the Government does not change the laws of the state except and until it is incorporated into national law by legislation. Until incorporating legislation is put to force, the national courts have no authority to put into effect treaty rights and obligations both on behalf of the Government or a private human being.

Parties agree to secure these rights and freedoms to everyone within their jurisdiction. The Convention also establishes international enforcement machinery. To ensure the observance of the activities undertaken by the Parties, the European Court of Human Rights in Strasbourg has been set up; it deals with individual and inter-State petitions. At the demand of the Committee of Ministers of the Council of Europe, the Court may also give advisory opinions with reference to or pertaining the interpretation of the Conventions and the protocols thereto.

Under the European Communities Act 1972 (ECA) Parliament willingly gave effect to the United Kingdoms’ obligations and duties under the previous Community and now European Union Treaties in national law. The European Community Act (ECA) defines the legitimately certified or legal relationship amid the two if not separate spheres of law, and exclusive of it European Union law could not become part of national law.

Most of the Contracting Parties to the European Convention on Human Rights have included the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision. Coupled with the access of force of Protocol No. 11, has radically improved the status of Convention rights, and the impact of the case law of European Court of Human Rights.

In conclusion, the laws cannot be changed because of GC & C v Commissioner of Police for Metropolis because a law made is a law to be kept and followed. It cannot be made flexible or easily amended at any given time because if it did there would not be any respect for the law and that would make the law be easily influenced which is not good for a country or state.

Human Rights in the United Kingdom are not being fully protected but despite that fact the court has however being able to protect individual rights just like in the case of R v The Head Teacher and Governors of Denbigh High School [2006] UKHL 15, where the Court of Appeal and the House of Lords was In favour with shabina Begum.

Bibliography:

Le Sueur, A., Sunkin, M., Murkens, J.E.K., ‘Public Law: Text, Cases and Materials’, (Oxford University Press: New York 2010)

Le Sueur, A. & Sunkin, M., ‘Public Law’, (Addison Wesley Longman Limited: New York, 1997)

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