European and Equity Law of the UK - Essay Example

European and Equity Law of UK Number Department (Word Count 986) Question European Union Law and its institutions are deemed as superior to local legal systems adopted by the Member states such as the United Kingdom. At times, however, UK has considered the supreme EU law as undermining its sovereignty. Regardless, UK is expected to tailor her domestic laws to be in line with the EU law under the EU Treaty, despite the fact that the European Court through its appeal option has been occasionally at odds with local UK’s courts and other written laws. The EU Convention of Human Rights The UK ratified the European Convention on Human Rights and Fundamental Freedoms (ECHR) in 1950 and thus agreed to abide by its provisions. The Treaty obligates UK to legislate in line with the international law in securing universal human rights it envisages. The Treaty also established the European Court on Human Rights (ECtHR) to give individual British citizens an appeal option for those who feel that their rights have been violated under the local law (Davies, & Virgo, 2013). As such, many UK citizens have filed their appeals at the Strasbourg Court, with a majority of the cases being decided in their favour and thus piling more pressure on UK government to make more liberal laws. Such EU Decisions prompted the UK parliament to pass the Human Rights Act 1998, which has been in effect since 2000. The Act is deemed as a local reflection of the human rights provisions under the EU Convention, which the Labour government promised the voters in 1997. The domestication of the EU law arguably ensures justice by limiting the cost and time of having to pursue justice at the Strasbourg Court. The HRA Act 1998 also imposed an obligation on the local UK courts to adopt the precedents set by the ECtHR when deliberating similar cases in a manner that explains the tremendous influence on local law. Compliance with EU law In the event that local courts and parliament disagree with the international law, UK would be deemed as failing to safeguard individual rights. As such, I believe UK would be at pains to fend off arguments that it is in utter violation of its international duties under the treaty. The ECtHR has in it its rulings attempted to create harmony with local state mechanisms by ensuring that its rulings are flexible under the principle of margin of appreciation. When issuing its verdicts on cases, this principle gives states some freedom in enforcing human rights based on their customized needs. Regardless, this has been insufficient on the issues where London starkly is in conflict with the ECtHR decisions. In the recent past, UK’s government has been in conflict with the Strasbourg Court over whether denying prisoner suffrage rights violate the Convention. However, in the landmark decision of Hirst v the United Kingdom (No 2) [2005] ECHR 681 the ECtHR ruled that an absolute denial of British prisoners’ right to elect leaders of their choice was in breach of the Convention. The court, however, ensured the UK had its national rights safeguarded under the margin of appreciation by leaving it to the state to legislate on who among the prisoners deserved to vote. The Court further gave direction that the lifting of the blanket denial of prisoner suffrage rights should be done in line with Article III of the First Protocol. Notably, the Article does not compel states to ensure that every ballot is deemed as equal; that various electoral systems encounter wasted votes and introducing an equivalent representation would be an injustice in itself. As such, the ECtHR Decision merely obligated the United Kingdom to explain the reasons behind its selective application of the doctrine of popular vote and change the policy if possible. The 2005 decision by the Strasbourg Court noted that the total ban on prisoner vote was a violation of the right to suffrage. Therefore, I believe the Strasbourg Court arguably fulfilled its mandate of persuading British authorities to adopt the contentious issue of prisoner voting. Having persuaded the UK on the need to implement the verdict, practically made it part of the local law which it had to implement as part of its international obligations under the EU Treaty. EU has in the recent past established mechanisms to deal with cases of noncompliance by member states and the UK is no exception. For example, Protocol 14, which came into effect in June 2010, provides for referrals of such issues by the Committee of Ministers to the Grand Chamber for action. I believe the UK would be vulnerable to referral in the event of non-compliance and could stand hefty penalties such as suspension or dismissal from the Council of Europe. Such a response by the international authority could undermine UK’s economy and diplomatic relations, considering that the country is highly integrated into with other EU member countries socially, politically and economically (Davies, & Virgo, 2013). In addition, I believe that tying the EU membership to the implementation of the ECHR, failure of the UK to play along could result in the country’s ejection from the EU, which the country is not ready for, more so, on the grounds of non-compliance with international human rights Charters. As the result, the UK would rather grant fundamental human rights than face serious isolation whose social, economic and political impacts would weaken the country and soil its reputation as a fore-front human rights crusader in the world. Leeway for non-compliance Despite the strictness of the ECHR law on the state actors, the latter may capitalize on a small leeway provided by law to override the supreme EU law. The Bill of Rights Commission is an example of a body established to handle potential differences between the EU case law and Parliament. This is especially true because Parliamentary decisions are deemed as a voice of the people. Under the principle of democratic override, legislators may circumvent a decision by ECtHR. However, by opting to go the parliamentary way, the UK faces the risk of parliamentary activism, which could roll back important human rights gains which have been achieved so far under the bigger EU Human Rights Law. For the local courts, however, I think there is a solution to any conflict with the ECtHR in order to avoid cases of absurdity. As such, where the local legal system is in conflict with the EU law, local courts are mandated to declare incompatibility under sections 4 and 10 of the HRA 1998, as part of compliance with the international law. All that is required of the local courts is to provide adequate reasons why the case(s) in question must be decided based on the local Human Rights Act as opposed to the ECHR. Under the Act, courts are expected to consider the ECtHR common law, which means they are not obligated to implement the EU law in its entirety or cite it, especially when it is in conflict with domestic law. Generally, UK is bound by the EU treaty to observe the international law of human rights. As such, Parliament must legislate in line with the EU law as part of UK’s obligations under the Treaty. The passage of HRA 1998 is deemed as part of UK’s compliance with EU law, considering that the Act was drafted based on several decisions made by the Strasbourg Court. However, the doctrine of democratic override, declaration of incompatibility and the margin of appreciation may be used by the UK to occasionally deviate from the EU law, provided there are sufficient grounds to do so. Question # 2 In the English common law and within the entire Commonwealth jurisdiction, equity law transcends all areas of civil law. The Chancery office was the first custodian of equity credited for issuing the first writs that would form the basis of the common law tradition since the modern times (Davies, & Virgo, 2013). Equity is not in any way influenced by state laws and is law in itself. It generally moderates extreme cases of common law application, thus allowing judges to use their authority to ensure fairness in line with the maxims of natural justice. In practice, however, current-day equity is subject to some substantive and routine rules. As such, there are several implied ethical rules, which commonly guide the implementation of equity in a consistent manner. Critics of equity argue that it was never based on the consistency of fixed maxims, with judges tampering raw ‘justice’ with their individual conscience. The maxims of equity later became more rigid, and from the 1600s onwards, the law quickly developed into a structure of precedents in the same way common law has had remarkable consistency in its application. The English common law has given judges wide latitude to create different reliefs in equity cases. The same case applies to the US where in the landmark case of Willard v. Tayloe, 75 U.S. 557 (1869), the Supreme Court ruled that that relief is flexible and cannot be an unqualified right to either party. The judges further directed that it is the duty of courts to grant equity upon considering all the factors in each case (Davies, & Virgo, 2013). The Court then proceeded to set up a new test in Willard to establish that a relief should be based on justice, and should be denied if granting it is most likely to disadvantage either party. In light of the Willard test, the Court established that claimant Henry Willard had acted in good faith by giving United States notes as first instalment to facilitate the transfer of property despite the fact that the contract stated that coins would be allowed. The Court further ruled that equity did not arise in the price variations during the course of its transfer. As Davies and Virgo (2013) said, I believe Hodgson v Marks [1971] 2 WLR 1263 is anther landmark equity case in which the English Court of Appeal allowed Mrs Hodgson prayers for recovery of a property sold by her tenant while he held it as a beneficial owner on the grounds of bare trustee. Mrs Hodgson handed the house to her lodger Mr Evans, and both continued to reside in it, with rent and settlement of bills being guided by the ‘ownership’ agreement. Mr Evans then in violation of trust sold the property to Mr and Mrs Marks. When the buyers came to see the house they met Mrs Hodgson whom they assumed to be the seller’s wife. At trial, the court ruled in favour of the Marks, arguing that the buyers immediately recognized actual ownership of the house by Mr Evans. But when Hodgson appealed, the Court overruled the trial verdict on equity grounds by holding that Hodgson was in actual ownership of the property any assumptions that she was Mr Evans’ spouse was not equivalent to her loss of the property. Question # 3 In preparing to write this essay, firstly, I have learned that laws are made to make people reasonable in day-to-day operations, as opposed to punishing people. As such, laws which put people at unfairly disadvantaged positions are normally repealed or left to courts to interpret in a manner that keeps it in line with reasonableness as far as enjoyment of fundamental rights are concerned. Secondly, I have learned that writing a law paper without sources is challenging and one can easily stray out of topic or put individual opinion in the paper. In my next paper, first, I will cite more sources ranging from books, journal articles, EU law, English case law as well as decisions by superior courts from other jurisdictions in order to come to terms with how different legal systems administer justice. Secondly, I would provide reflection on why I believe courts make certain decisions. With more sources as the basis of my arguments, my future paper will be more intensive in terms of content than the current paper written in my own words. Reference Davies, P.S., & Virgo, G., 2013. Equity & Trusts: Text, Cases, and Materials. 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