Statutory Interpretation of the Human Rights Act 1998 by the UK Courts - Essay Example

of the of the of the Sta y Interpretation by the UK Courts Does Not Attach Much Importance toEU Law and Human Rights Act 1998 Subsequent to becoming a member state of the European Union or EU, the judiciary of the United Kingdom had to countenance the enigma of deciding upon the extent to which they would have to reconcile the contending supremacies of the EU law and national law. The European Communities Act 1972 requires the national law to accord supremacy to the EU law. The domestic courts of the UK have construed this to imply a modification of procedures and systems, in order to comply with the EU order1. This development has been considered by a section of the constitutionalists as being an extraordinary development. However, the courts have treated such evaluations as mere exaggeration. Whilst pronouncing such judgements the courts have stressed that they have given due consideration to Parliament’s sovereign intentions2. In the Von Colson case, the EU made it mandatory for the national law to implement a specific EU Directive3. However, in Marleasing the EU required the national courts to interpret national legislation in accordance with the provisions of the pertinent EU Directives4. However, the UK Courts though agreeable to implementing the principle established in Von Colson, were unwilling to accede to the obligation established in the Marleasing judgement. In Duke v. GEC Reliance Ltd, the plaintiff Mrs. Duke’s employment had been terminated as she had attained the age of sixty years. However, men were allowed to work till the age of sixty – five5. The national courts did not revoke her termination orders, because she had applied to the court prior to the passing of the 1986 Sex Discrimination Act. The ECJ held that this decision breached the Equal Treatment Directive of 1976. This case clearly illustrates the reluctance of the UK courts to interpret national laws in accordance with EU Directives6. Subsequent, to the implementation of the Human Rights Act 1998, the ECHR or European Court of Human Rights’ influence on UK legislation was negligible. There was a marked lack of enthusiasm in the UK to conform to the prevalent international standards in this context. The ECJ had reiterated on several occasions that the judiciary of the UK had to incorporate into their law the precepts of the EU law as also the principles that devolved from the ECHR. Nevertheless, the national courts chose to avoid doing so7. Tony Blair integrated the European Convention into the national law of the UK. Afterwards the Human Rights Act was ratified in 1998, this served to make the UK legislation akin to the laws of the US and the member states of the EU. However, the inherent dislike to incorporate these principles into UK law was evident from the refusal of Parliament to include the right to life and the right to enjoy an effective remedy, Articles 2 and 13 respectively of the ECHR8. The UK Parliament’s contention was that these aspects of the Human Rights law had already been considered in other pieces of UK legislation. This was not the case with Article 13, whose provisions had not been adequately addressed anywhere in the extant laws of the UK. This depicts the lackadaisical approach that the UK has adopted towards Human Rights9. In July 2005 the city of London was subjected to a series of bomb blasts by terrorists. This prompted Tony Blair to implement a twelve point programme to contain terrorism on British soil. The measures implemented by this programme are first, to amend legislation with respect to deportation, so that persons who are not citizens of the UK can be deported. Such deportation is to be resorted to even if the deported person is at risk of being subjected to torture or other such prohibited behaviour. Second, to make it an offence to overlook, substantiate or venerate an act of terrorism. Third, to desist from providing asylum to a person who is involved with terrorism. Fourth, implement new measures to detain suspected terrorists for much longer periods of time10. The United Kingdom has always had a negative approach to the rights of its citizens. An expression of speech was permitted only if there was no law prohibiting such an act. As such, basic rights had not been explicitly stated anywhere. In the year 1996 a survey named as The Democratic Audit was published. It furnished particulars regarding the existing standards in the 1990’s. This survey had recorded forty – two violations and twenty – two near violations. These infringements occupied the whole gamut of issues and this led to the conclusion that the very core of the UK’s political and constitutional system had been emasculated11. Consequent, to the London terrorist bombings of July 2005, the Tony Blair government decided to implement certain measures to contain terrorism. Blair states that these initiatives were essential and that the requisite administrative measures would be made effective without any further delay12. The Amnesty International’s contention was that these novel measures being implemented by the UK government were compromising the judiciary’s independence, damaging the rule of law and violating human rights. The principal human rights that these measures would violate were the unconditional proscription of torture or other abuse. Deporting a person to a country where that person could be subjected to torture or maltreatment, this is the well known non – refoulement principle that has been specified in Article 3 of the Convention against Torture or CAT13. The European Court of Justice pronounces judgements with the objective of implementing the European Union’s law uniformly throughout the Union and at times this makes it ignore the national laws. The ECJ’s rulings on several occasions have affected the national governments’ interests. However, there has been constant lobbying by the member states at the EU level and these member states keep interacting with the ECJ so that they could obtain a favourable decision from the ECJ14. The ECJ’s case law is based on Article 213 EC Treaty under which the Court determines the member states’ liability for violation of the Community law. The Member States have an obligation to make good the damages caused to individuals by incorrect application of the EC law or improper implementation of the Directives of the EU15. In the case of British Telecommunications or BT, the plaintiff had suffered huge losses due to the improper implementation of the Directive 90/531/EEC, which stipulated the procedures for procuring resources by the water, energy, transport and telecommunications sectors. The UK government incorrectly transposed this Directive, thereby causing substantial loss to the British Telecommunications, which challenged the decision of the UK government and argued that its losses were the result of complying with these regulations. The crux of the matter was that this Directive permitted contracting companies, under certain circumstances, to exclude themselves from its requirements by notifying the Commission. The UK government had made regulations that had made it the sole authority for allowing such exclusions16. The ECJ held that state liability was established as the government failed to incorporate the directive in its legislation. However, it exempted the UK government from compensating the plaintiff, because the incorrect transposition of the Directive was not a sufficiently serious breach of the EU law17. The ECJ had joined the Brasserie case with the Factortame III, a British case, which was the third in a series of cases that involved the registration of fishing vessels in the UK. In Factortame I, the ECJ held that the immunity of the Crown from interim relief, which prohibits the enforcement of a statute, could not be treated as absolute. The ECJ also held that the Crown needs to accede to the compatibility of a statute with the Community law18. In Factortame II, the Court ruled that certain provisions of the fishing registration act were in contradiction with the Community law and that these provisions discriminated on the basis of nationality, which made them unlawful and incompatible with EC law. These provisions had prevented some persons from getting their vessels registered under the new fishing act and these persons filed claims for damages resulting from such prevention19. The rulings of the ECJ in the above cases of Factortame have been the basis for the decision in the Factortame III case, which was joined with the Brasserie case. In Factortame III, ninety – seven plaintiffs sued the government of the UK as they had incurred losses due to the provisions of the Merchant Shipping Act 1988, which had been enacted by the United Kingdom20. The plaintiffs claimed damages in this case by resorting to the fundamental principles of the EC law. The ECJ clearly established in the Francovich case that the member states are under an obligation to compensate the losses incurred by individuals due to breach of EC law by these member states. The ECJ had established certain important principles with regard to the Directives to be implemented by the member states. First, the Directive must provide rights for the individuals, second, the scope of the rights must be available in the Directive itself and third, there must be a causal link between the breaches of the member state while implementing such Directives and the individual should have suffered significant loss21. The decision of the ECJ in these cases applies in a number of ways to the member state governments with regard to the limitations of the Francovich principle. Member states’ violation of clear and unambiguous provisions automatically provides a right to compensation to the injured. If the provisions are complex or ambiguous then there would be a request for interpretation of the same by the national courts or the ECJ. Moreover, the national courts can deal with the damage suits in accordance with the provisions of national liability laws. Thus the ECJ heeded to the requests of the member states that state liability should be made a policy matter of their national legislations22. Another important issue is that the case law of the ECJ depicts the fact that the Court is agreeing to restructure the entire concept of state liability as desired by the member states, particularly the larger ones like France and Germany. The need of the hour is clarification regarding the Court’s stand that liability claims can be adjudicated in national courts and the extent to which the ECJ would allow such national statutes of limitation23. The tragic events of September 11, 2001 brought about far reaching changes to the laws of the US and the fallout of this tragedy had significant effect on the UK government. Terrorism was an old nemesis of the United Kingdom, from nearly eighty years the Irish Republican Army had been committing acts of terrorism against the UK government. Therefore, the UK had always had the wherewithal and experience to deal with terrorism. In dealing with these terrorists the UK government had on several occasions breached human rights. However, the advent of the Islamic brand of terrorism proved to be really terrifying. These terrorists were in the main suicide bombers and they had scant regard for their own lives24. On the 7th of July, 2005 the London underground train system was attacked by the Islamic terrorists with frightening consequences. Sixty – seven people lost their lives in this terrorist attack. The Tony Blair government enacted promulgated very stringent legislation, which the Amnesty International considers as the abandonment of human rights. The ostensible reason being trotted out for the imposition of such draconian laws is that state security has been compromised and that the threat of terrorism cannot be contained in any other manner25. The result of these measures is that the UK shows scant regard for the provisions of the UNHR. However, this is a recent development that has been caused by the depredations of the Islamic Terrorists. The Merchant Shipping Act was enacted in order to prevent firms that did not have at least sixty percent shareholding, from fishing within the maritime territory of the UK. It served to prevent EU countries with fishing quotas from fishing in British waters. This resulted in the case known as Factortame and the House of Lords referred to the ECJ, which held that interim relief was to be granted if the breach of EC law had caused injury to a claimant, even if the breach had been expressly permitted by legislation. The UK functions on the premise that its Parliament is supreme and cannot bind its successors. Hence, it had assumed that the Merchant Shipping Act was to take precedence over European Communities Act. The EC Act and the Human Rights Act seem to have established themselves firmly in UK law and the judiciary strongly opposes any attempt to supplant them. The UK is not enamoured of granting power to the EU in respect of its national laws and economy. This is clearly illustrated by the refusal of the UK to adopt the Euro as its currency. Initially, the UK was in favour of strengthening the ECJ and this was clearly indicated during the Maastricht treaty discussion. Subsequently, the UK government favoured a drastic reduction in the ECJ’s interference with its national laws, because of the harm being sustained by parliament supremacy. This was especially so in respect of the decisions in cases like Factortame. In this manner, the UK government circumvents EU law and Human Rights laws, whenever it can. Works Cited Anthony, Gordon. UK Public Law & European Law. Hart Publishing, 2002. Pp. 75 – 76. —. UK Public Law & European Law. Hart Publishing, 2002. P. 94. —. UK Public Law & European Law. Hart Publising, 2002. P. 157. Beckman, James. Comparative Legal Approaches to Homeland Security and Anti – Terrorism. Ashgate Publishing Ltd, 2007. P. 51. —. Comparitive Legal Approaches to Homeland Security and Anti – Terrorism. Ashgate Publishing Ltd, 2007. P. 2. Dismore, Andrew. The UN Convention Against Torture (CAT); Ninteenth Report of Session 2005 – 06. The Stationery Office. ISBN: 0104008644, 2006P . 106. Duke v. GEC Reliance Ltd. No. 1 All ER 626. 1988. Factortame III. No. C - 48/93. Foster, Steven. The Judiciary, Civil Liberties and Human Rights. Edinburgh University Press, 2006. P. 24. —. The Judiciary, Civil Liberties and Human Rights. Edinburgh University Press, 2006. P. 211. Francovich and Others. No. Joined Cases C-6/90 and C-9/90. [1991] ECR I-5357. Garrett, Geoffrey, R. Daniel Kelemen and Heiner Schulz. "The European Court of Justice, National Governments, and Legal Integration in the European Union ." International Organization (Winter, 1998): Vol. 52, No. 1.pp. 149-176. Marleasing SA v. La Comercial Internacional de Alimentacion SA. No. Case 106/89. 1990. R v HM Treasury, ex parte British Telecommunications . No. Case C-392/93 . The European Court . 1996 2 CMLR 217. R. v. Secretary of State for Transport, ex parte Factortame. No. C-221/89. [1991] E.C.R. I-3905. The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others. No. C-213/89. [1990] E.C.R. I-2433. Von Colson and Kamann v. Land Nordrhein - Westfalen. No. Case 14/83 ECR 1891. 1984. Watts, Duncan. British Government And Politics: A Comparitive Guide. Edinburgh University Press, 2006. P. 45 – 47. Read More