Are European Court of Human Rights precedents binding on U.K Law?

[roony]

Hi,

I was wondering if ECHR precedents are binding in the U.K, if so what happens if legislation or law, violates those precedents?

 

 

Also is EU law going to over take existing British Law?

 

thnx

[ErikaPNP]

Yes they are binding. If UK legislation is not compatible with ECHR a "declaration of incompatibility" is issued.

 

If a court makes a declaration of incompatibility (or if the European Court of Human Rights holds that a statute infringes the ECHR), the government has power to amend or repeal statutes by order.

 

EU law is not taking over British law.

[StormWarrior]

"EU law is not taking over British law."

 

YET !!

[roony]

Thnx for the replies, so if ECHR precedents are binding ...

 

And since the U.K has been subject to ECHR law since 1961, then why do we have sections 43, 44, 53 of the terrorism act & socpa, all of which violate european human right law?

 

 

Also isnt Britain due to come under EU law after may 2010?

 

I read European parliaments are supposed to supercede UK parliament after may 2010, ill have to look up specifics, but thats basically what i read.

 

Also what remedy do we have, if charged under law which violate european human right precedents, such as section 44?

 

thnx

Edited January 11, 2010 by roony

[mightymouse_69]

Thnx for the replies, so if ECHR precedents are binding ...

 

And since the U.K has been subject to ECHR law since 1961, then why do we have sections 43, 44, 53 of the terrorism act & socpa, all of which violate european human right law?

 

Domestic courts must interpret domestic law inline with EU law. If they are unable to do this, they declare the law incompatible.

 

Sometimes, the state can obtain a derrorgation order, allowing them to essentially ignore a provision in the ECHR... especially when the matter concerns national security.

 

Why do you feel the sections you gave violate human right law?

 

Also isnt Britain due to come under EU law after may 2010?

 

I read European parliaments are supposed to supercede UK parliament after may 2010, ill have to look up specifics, but thats basically what i read.

 

The Daily Mail may believe this to be so, but as far as i am aware nothing this major is happening.

 

Also what remedy do we have, if charged under law which violate european human right precedents, such as section 44?

 

thnx

 

If you feel you are charged under a law that violates your rights under the ECHR, there is option to appeal (after seeking legal advice). You do not have to go to Strasbourg now... however the option to travel there is available.

[ErikaPNP]

Britain became a member of the EU in 1973. Since the UK joined the European Economic Community in 1973, the treaties themselves, legislation passed under them, and the rulings of the European Court of Justice, have all been sources of UK law. The Human Rights Act was made in 1998 and gained royal assent in 2000.

 

In regard to primacy, once an EU-sourced law is applicable in the UK, it would be contrary to the EU treaties for the UK to keep or pass any laws that contradicted the EU-sourced law.

 

National parliaments are provided with a direct say in EU law-making. If one third of national parliaments object to an EU proposal then it can be sent back to whoever made the proposal for it to be reviewed (the yellow card). If a majority of national parliaments oppose a proposal, and the Council or the European Parliament agrees, then it can be struck down (the orange card).

 

The ultimate sovereignty of the UK Parliament is not affected by the UK’s membership of the EU or the Treaty of Lisbon, and the UK can withdraw from the EU if it so wishes.

 

If Eureopean law is replacing UK law this year then I'm surprised (and exceptionally worried) because the law course I'm studying isn't in EU law. None of the degree courses in Scottish or English law commencing this year will lead to a qualification in EU law, although EU law will be incorporated into the learning processes. Universities would not be offereing degree courses which lead to qualifications specifically in English or Scottish Law if the laws were to be replaced entirely with EU law.

 

How does section 44 of the Terrorism act violate human rights? Can't see it myself.

[JonCris]

Erika your reading law yet can't see how section 44 violates the HRA!

 

On the other-hand it may be the way it is being used AND abused by the authorities which the poster refers to as being at variance with the HRA

[mightymouse_69]

 

On the other-hand it may be the way it is being used AND abused by the authorities which the poster refers to as being at variance with the HRA

 

I agree - on face value it seems fine, but in reality its just another excuse for the old bill to snoop around when they feel the need.

 

Remember the OAP labour conference heckler who was taken outside and detained under terrorism laws...

[JonCris]

Yup Wolfgang was his name & despite considerable opposition from the likes of Straw, who he heckled, he's now a member of labours NEC:D

[ErikaPNP]

Erika your reading law yet can't see how section 44 violates the HRA!

 

On the other-hand it may be the way it is being used AND abused by the authorities which the poster refers to as being at variance with the HRA

 

On the nail.

 

As far as I am concerned the section in itself doesn't violate the HRA. It is clear within the HRA that some exceptions exist if certain "rights" are not afforded in order to comply with legislation, or public interest.

 

However, if it is being abused then it could absolutely be a violation and should be challanged appropriately as outlined in Section 7 of the HRA.

 

I agree - on face value it seems fine, but in reality its just another excuse for the old bill to snoop around when they feel the need.

 

Indeed. Likewise the HRA is often interperated incorectly by the likes of the Daily Wail, and members of the public to create a scandal where there isn't one.

[mightymouse_69]

Likewise the HRA is often interperated incorectly by the likes of the Daily Wail, and members of the public to create a scandal where there isn't one.

 

Agree 100% with that.

 

Anyway, all this human rights stuff is no good for me at the moment... anyone any good at Trusts and Equity?

[JonCris]

I'm a great believer in the HRA & think it may be the only thing we have to defeat this state which seems hell bent on attacking our civil rights.

 

Also I think it's a mistake to attack the media as they seem to be the only form of opposition that we have who are prepared to speak out against this government

[haggis1984]

Stop and search powers illegal, European court rules | UK news | guardian.co.uk

 

Stick that in your pipe and smoke it Jack Straw.

[JonCris]

Erika according to a very recent ruling the European Court have now ruled that section 44 is NOT compatible with the law

[My Real Name]

I was just about to post the same. I'm curious as to how the Home Office and ACPO are going to ignore this recent ruling.

[kiptower]

from the BBC website

 

BBC News - Stop-and-search powers ruled illegal by European court

[JonCris]

I was just about to post the same. I'm curious as to how the Home Office and ACPO are going to ignore this recent ruling.

 

 

I guarantee they'll try & fudge the ruling claiming it doesn't actually mean what it states

[Conniff]

It's amused me that they are going to appeal and yet they gave all our rights away. They can't have it both ways.

[ErikaPNP]

I did hear of that today - I read the decision of the House of Lords a while back when their appeal to them was dismissed.

 

LJ Brooke dismissed the application for Judical Review in 2003. The Court of Appeal heard it in 2004. This was followed by a further appeal to the House of Lords who unanimously dismissed it in 2006, and now the ECHR has held their appeal. I believe Home Secretary Alan Johnson plans on appealing the ruling by ECHR.

 

The House of Lords decision is here for anyone who wishes to read it: http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060308/gillan.pdf

 

I'll reserve my comments until I have read a transcript of the judgement of the ECHR, which is as yet unavailable on the ECHR website.

[haggis1984]

Tbh im surpsied they're not just taking the same route they did with the DNA retnetion ruling and just ignoring it.

[labrat]

its not all stop and searches mind

 

just those under section 44 of the anti terror act i.e. the ones where they havent got any suspicion. e.g. the "im bored" act

[mightymouse_69]

I believe this is the judgement:

 

ECHR Portal HTML View

[ErikaPNP]

Oh WOW - thank you Mightymouse - I could not for love or money find it! I'll have a good read when I have some time. Thank you so much for this.

 

I'm learning and find it very interesting to see how ECHR judgements compare and conflict with decisions of the courts before them.

[JonCris]

In view of Lord Carlisle's comments, upon which the court rightly placed considerable weight, I think Johnson should forget appealing this Judgment

[mightymouse_69]

Oh WOW - thank you Mightymouse - I could not for love or money find it! I'll have a good read when I have some time. Thank you so much for this.

 

I'm learning and find it very interesting to see how ECHR judgements compare and conflict with decisions of the courts before them.

 

Your welcome, i couldnt find it on any of the legal databases (westlaw etc)... at first sight i couldn't even see it on the ECHR site!:-|