Should the UK withdraw from the European Convention on human rights - Essay Example

? Should the UK withdraw from the European Convention on human rights? Insert Insert Grade Insert Introduction The arguments on whether the United Kingdom should withdraw from the European convention on human rights have raised great debate in the UK. Some have claimed that the adherence to the convention has been a hindrance to prosecution of criminals especially in case of international crimes. They argue that the United Kingdom is a sovereign state and has a constitution that should guide it in the administration of justice. However, some have argued that withdrawal from the convention will be a great political mistake. They say this will go against the post-war fundamental liberties that were established in Europe (Bowcott, 2013). This paper looks at whether the United Kingdom should withdraw from the convention by investigating the following issues; Constitutional issues and parliamentary sovereignty, the impact and effect of HRA 1998, and it's problems, the legal status of ECTHR judgments and the article of the ECHR in the UK, the benefits and problems of ECHR membership to the UK legal system and general principles and goals of human rights law. Constitutional issues and parliamentary sovereignty Sovereignty of the parliament dictates that the parliament has the sole discretion to make and amend laws in the UK. No person or body is recognized by the UK legislation to overrule the law made by the parliament. In this spirit the parliament is seen to be competent to make any laws. Laws that deprive the citizens of their right to property, liberty, voting, and life among others should be seen as valid so long as they have been passed by the parliament. This is done in faith that the parliament can exercise self restraint and only pass laws that are at par with the moral standards. However, this has not been the case always because some politicians have normally put their own selfish interests at the cost of national interests. The ECHR being an international body helps to regulate such offensive or repugnant laws. The citizens of Britain should advocate against their government withdrawal from the convention. This is for the benefit of regulation of the laws that the parliament may pass. The Human Rights Act of 1998 and its Problems The human rights act of 1998 was drafted on the principle of protection of human rights but reconciled with the sovereignty of the state (UK Government, 2012). Under this act, the parliament may make legislations and the courts may not necessarily quash them on the grounds of inconsistency with the European Convention on human rights. In fact, it is only the higher courts that should interpret the legislations and determine their inconsistency. The higher courts may only declare incompatibility where it is very clear. This act was put forward in order to ensure parliamentary sovereignty. However, the enactment of the act has transformed the constitutional environment in which the parliament’s legislative power exists; the legislative powers have been altered. Three features of the act pose problems to its enactment and goes against the ECHR. The first problem is that the act places the power to interpret whether the acts are consistent with convention rights in the hands of the judiciary. This greatly alters the process of interpretation of the legislation. This has two implications; it is rare for legislation properly interpreted to go against the human rights norms. The parliament will always use a clearer and precise language if it wishes to abrogate human rights. The use of clear language draws the attention of public and the parliament. The government may put a strong justification of the legislation to win the public support. This legislation may be infringing on the rights of the people but it may escape the eyes of the judiciary which has been given the ultimate power to determine its compatibility with the rights convention (Elliot, 2002). The second problem is that the minister in-charge of the bill should make a statement of the bill’s compatibility with the human rights convention after the second reading. However, the minister may also state that he is unable to determine whether the bill is compatible with the human rights convention but he wishes the house to proceed with its discussion. In this case it may raise great debate in the house. The parliament will greatly scrutinise the bill to see if it violets the human rights. This may lead the house to overlook the other elements of the bill and greatly focus on the human rights element. The third issue is the provisions in the act that relate to determination of incompatibility and the consequent amendment. The courts are given the powers to determine incompatibility with the rights convention but have no powers to quash such legislations. There is clear distinction between quashing offending legislation and determination of its compatibility with European convention. When the court declares that the legislation contravenes the European convention, substantial pressure amounts for its amendment. This is because of two major reasons. First, there will be substantial political pressure to amend the legislation to be in line with the European convention. To avoid these situations the courts will strive to interpret the legislation in line with the convention and rulings of incompatibility are likely to be rare. Ruling of incompatibility also sets a negative message to the world that the UK law is not in line with pan-European human rights guarantees stipulated in the convention. It is expected that incompatible legislations will be amended and consequently passed. Secondly, even if there is no pressure to amend the legislation that contravenes the convention, the amendment still has to occur. This is because a great deal may be lost by not amending the legislation. The proponents of the bill that has been declared incompatible but the amendment has not been secured, may take their case to European Court of human rights in Strasbourg and given they have the evidence that the legislation contradicts the convention, they are likely to win. The British government will therefore be compelled by international law to amend the legislation. This would be similar to a case where the amendment was fast tracked, only that the government and the applicant would have undergone an extra expense. Taken all together, these features go against the spirit of European convention of human rights. The act upholds parliamentary supremacy but greatly alters the environment in which the legislation exists. The legal status of ECHR judgments and the article of the ECHR in the UK The ECHR provides a forum where European nationals and others can get international redress where they believe their rights as stipulated by European Convention on human rights has been violated. ECHR normally prevails upon the concerned nations to amend the laws that contravene the convention. Some of the judgments that have been affected by ECHR that concern UK are discussed in the succeeding sections. In the year 2000 the UK government was compelled by the ECHR to end their exclusion of gay women and men from serving in the armed forces. This was in response to the case of brought before the court by four gay men and women that had been dismissed from duty due to their sexual orientation. The court said that the exclusion of gay men and women, including investigation into their private lives went against the right to privacy as granted by article 8 of the convention. The court also ruled that UK violated article 13 since the applicants got no effective remedy before a national authority in pursuance of violations of the convention. The applicants also sought that ECHR rules that the government behavior amounted to degrading behavior as set forward in article 3 in conjunction with article 14 which guarantees no discrimination on the basis of national origin, color, public opinion, race and the like. However, the court did reject this argument. In response to this judgment the UK did revise the military code of conduct. In the new code gay individuals were allowed to serve in the military The second case concerns a child protection case. The case was referred to the ECHR court by the European commission in accordance with protocols of European convention. This case concerns five children, neglected and mistreated by their parents. It is alleged that Bedford County Council failed to protect them. ECHR court found that UK failed to provide access to court or any other remedy as agreed in the European convention. The court ruled that UK had contravened Article 3 that provides the right not to be subjected to degrading treatment, Article 6 that advocates for the right to fair trial, Article 8 that provides for the right to respect for family life and Article 13 that provides for the right to an effective remedy (Weinstein, 2000). As it can be seen from the two cases ECHR has provided the platform for which the citizens of UK could get redress where they feel their rights have been violated and they have failed to get justice at home. Withdrawal from the convention will deny the citizens of this country that golden opportunity. The benefits and problems of ECHR membership to the UK legal system The benefit of ECHR membership to the UK legal system has been discussed to some extent in the preceding section. It has given the opportunity to amend laws that goes against the human rights as stipulated in the ECHR. It has also enabled the citizens of UK to get redress internationally where they failed to get such justice at national level. The benefits of UK remaining within the Convention is fundamental and of national interest. The ECHR is a major player in post- war conflict settlement and has played a major role in preventing the resurgence of totalitarianism in Western Europe. It also plays a key role in ensuring protection and respect of ECHR rights and freedoms of citizens in new democracies in Eastern Europe. However, the membership has also caused some problems in the UK legal system which is discussed in the succeeding sections. The major problem with ECHR is that when it comes to dealing with international crimes such as terrorism, the protocols set by the convention causes lots of delays to justice. There has also been a perception that ECHR infringes the sovereignty of UK by overruling some decisions made by home courts or ordering the government to amend certain legislations. There is also a claim that there are several cases still pending in the ECHR courts making it very ineffective in the administration of justice (West, 2013). Conclusion From the foregoing discussion it can be seen how important the ECHR is to the UK. There are the limitations of ECHR but this should not cause UK to withdraw from it given the pivotal role it plays in Europe. UK should aggressively advocate for reforms in ECHR that will ensure it is more effective. Its withdrawal can further weaken the organization and may cause crisis in Europe because there could be less respect for human rights. Reference List Bowcott, O (2013) ‘Conservatives divided over human rights legislation’ The Guardian Newspaper Elliot, M (2002) ‘Parliamentary sovereignty and the new constitutional order: legislative freedom, political reality and convention.’ Legal Studies Journal. Vol. 22 , Issue 3, pp. 340-375 United Kingdom Government (2012) Human Rights Act 1998. Accessed March 18, 2013 from Weinstein, H B (2000) Recent Decisions from the European Court of Human Rights. USA: American Society on International Law. Accessed March 18, 2013 from < http://www.asil.org/insigh45.cfm> West, E (2013) ‘The ECHR is right about Abu Hamza, but Britain still needs to leave’ The Daily Telegraph Read More