European Convention on Human Rights

Morgarth, 03 Oct 2005 22:27:26

The Human Rights Act 1998 does not prevent Parliament passing acts which are incompatable with the Convention, nor does it give the Courts the power to ignore such legislation. The Convention cannot be used to override Parliament in the way that the US Constitution can be used to override the Congress and Senate.

Section 3 of The Act requires the Courts to interpret legislation in a way which is compatible with the Convention rights, but only "so far as it is possible to do so".

Section 4 of The Act permits the Courts to declare that legislation is "incompatible with a Convention right". Such a declaration does not give the Courts the power to ignore the legislation and it must proceed to decide the case according to the legislation.

However, such a declation would create presure on the Government and Parliament to consider amendments to the legislation so as to remove the incompatibility. But they don't have to do anything.

Morgarth


clare, 03 Oct 2005 22:39:06

But don't you think the Government has bigger fish to fry in its battle with the Judiciary and the Convention? It will not want to stir up press/public comment on passing incompatible legislation over such a relatively trivial matter when it has deportation to concentrate upon.

Do you think that the Convention should not be a central plank of the opposition to this proposal?

Author wrote:
> The Human Rights Act 1998 does not prevent Parliament passing acts which are incompatable with the Convention, nor does it give the Courts the power to ignore such legislation. The Convention cannot be used to override Parliament in the way that the US Constitution can be used to override the Congress and Senate.
> Section 3 of The Act requires the Courts to interpret legislation in a way which is compatible with the Convention rights, but only "so far as it is possible to do so".
> Section 4 of The Act permits the Courts to declare that legislation is "incompatible with a Convention right". Such a declaration does not give the Courts the power to ignore the legislation and it must proceed to decide the case according to the legislation.
> However, such a declation would create presure on the Government and Parliament to consider amendments to the legislation so as to remove the incompatibility. But they don't have to do anything.
> Morgarth