English Legal System - The Human Rights Act (Part 1)

Human Rights
Human rights issues have been brought to the forefront of the world stage from the latter part of the 20th Century onwards. This could be viewed partly as a sign of the progression of society, that more formalised regimens are being put into place to protect individual rights, but also as a response to the atrocities that have also been witnessed, in the case of Europe those that preceded and happened during the Second World War.

Although human rights have grown in recognition over the last part of the 20th Century this is not to say that there was no protection of individuals prior to this time. The principle of the rule of law being used to protect the human rights of an individual can be traced back to the Magna Carta signed by King John in 1215.

Most countries have a written Bill of Rights which state the rights that individuals are entitled to, and that can be enforced by law, for example The American Declaration of Independence (1776) followed by the U.S. Bill of Rights (1789) and the French Declaration of the Rights of Man and Citizen (1789). The UK is unusual in that it does not have a written Bill of Rights, although in the moves towards a more transparent democracy it is a proposal that is under consideration.

The Development of Human Rights in Europe

In 1948, the Universal Declaration of Human Rights was adopted by the United Nations General Assembly. This formed the basis from which the Council of Europe drafted the European Convention on Human Rights (ECHR). The Convention was signed in Rome in 1950, and was ratified by the UK in 1951, it became binding on those states that had ratified it in 1953.

However this does not mean that the Convention has to be incorporated directly into domestic law once ratified, although some countries chose to do so the UK did not. Therefore although the ECHR had been signed in the 1950’s individuals in the UK could not rely on its provisions in the UKs national courts. If an individual believed their rights had been breached under the Convention, then a claim had to be pursued through the European Court of Human Rights. However this could only happen however once all domestic remedies had been exhausted.

The European Court of Human Rights was established to deal with claims concerning breaches of the ECHR. The Court sits in Strasbourg and deals with claims made by individuals against a state, and states against states. The problem with taking a claim to the European Court of Human Rights is that it was a very long and expensive process, Lord Bingham expressed dissatisfaction at the situation, citing that the average delay in the mid-1990s would be between six and eight years and would cost an estimated £30,000 upwards.

As the European Court of Human Rights found against the UK in more and more cases so the cries grew louder for the incorporation of the ECHR into domestic law. The introduction of The Human Rights Act met with much resistance, and there were three failed attempts to incorporate the Convention prior to its finally successful path through Parliament.
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