Expert: Wesley Ball - 12/29/2000

Question
Will the incorporation of the european convention on human rights into British law as the Human Rights Act be beneficial to the interests of the British people?

Answer
Dear Tom,

Thanks for your questions. I am sorry that I could not help with the other one, but my specialisms is most definately on the political side, particularly in history and theory. My legalistic knowledge is decidedly limit!

It is from this standpoint that I will try to help you with this question. Correct me if I am wrong, but this appears to be an essay question; it is obviously impossible for me to write your essay and you would not want me to this - I would suggest that it is worth fact checking everything I write.

What I can say on this is this:

1) The incorporation into British law of the ECHRFF does not fundamentally change the British constitution. Moreover, it probably strengthens it because powers and decisions that were once made by the European Court of Human Rights (remember that this is completely seperate from the EU and not one of that body's institutions) can now be made in Britain, by British courts.

2) However, it now means that all court judgements are now subject to the ECRHFF in a much more direct way, therefore decisions that, in the past would not have gone to the ECHR because of difficulty, time and expense, are now exposed to the laws of the court. This means that British, rather than European, Judges are having to make direct interpretations of the Convention. Thus, being caught by a speed camera is now up for review because of the HRA, whereas in the past no one could be bothered to pursue a £20 fine and 3points all the way to the ECHR.

3) Moreover, if a British Court rules something to be against the HRA the court only has the power to refer it back to Parliament - it cannot change the law directly. As I understand it, this means that Parliament could decide not to ammend a law in breach of the HRA, therefore opening up challenges through the old route of the European Court. NB. check this before you use it.

4) So clearly there is no direct challenge to the British constitution, however it is changed significantly simply because the point of referal to the ECHRFF has changed so dramatically. Whether you think this is good for the British people depends on three primary factors: a) do you think that human rights are of such a value that the upheaval to the British legal system is worth the (basically unnecessary) change? b) do you think that the rights in the ECHRFF are in fact of any value or are they so vague as to be more of a statement of intent, than of proper legal standing? c) do you think that the return of sovereignty brought by the act is real and, if so, is this a positive or negative thing?

I think the change has been worthwhile and in the interests of the British people in terms of the rights it brings to the people, and the ease of gaining justice that it provides. I also think that the return of sovereignty is important. I say this as an ardent pro-European because I think that the applicability of human rights is a judgement that can only be made by the relevant society - this, of course, implies that the judges are in touch with the culture (political, or otherwise) of modern British society!

I hope that helps, I will be on holiday now, until 2nd January, but if you have any further queries, get back to me and I will answer then.

Best wishes,

Wes.