The UK Constitution is not similar to the American Constitution, which is a written document to give directions on how the President governs. In the UK, the Constitution issue is very complex as it is a documentation of the historical events which direction cannot be defined in a single written code. The UK Constitution is what would be referred to as unwritten law that governs the citizens of the United Kingdom. There are a number of available written sources that are well documented but the Constitution as a whole remains undocumented. Nonetheless, the function of the constitution whether documented or undocumented, spells out the governance and administration within national or state boundaries. In the general definition of the constitution functions, it must clearly spell out the balance of power among national institutions, limit the degree to which the powers are exercised on the civilians, and state the degree to which the laws recognise rights and freedoms of the subjects. Due to the nature of the UK Constitution, this essay analyses the difficulty or ease of incorporating the Human Rights Act of 1998 into the European Convention on Human Rights and the effective integration of the human rights laws into the UK legal system.
The Human Rights Act 1998
There was a proposal made by the Chairperson of the Bar Council in an article in The Times that the UK should make the first constitution milestone in 2015 by documenting the constitution into one single written piece. The Magna Carta as it is commonly referred to should contain all the fundamental legal principles that help in ruling the UK. The UK Prime Minister proposed the inclusion of the British Bill of Rights but this did not auger well during its introduction due to the general public dissatisfaction with the Human Rights Act1998. The former Prime Minister, Gordon Brown published an article The Governance of Britain in 2007 indicating that the regime believed it was time to commence debates on three critical bills. These are Bill of Rights of the British citizens, the Statement of Values from the British people, and the Amendment of the Constitution to support the Human Rights Act 1998. The article also advocated for the superior nature of a written constitution.
The year 2000 was a great moment for the UK law as it saw the beginning of radical changes in the legal system of the country. To begin with, the European Convention on Human Rights was fully integrated into the UK legal system. This step ensured that citizens who felt that their human rights were violated could now take their claims to the European Court of Human Rights (ECtHR). From this point, whether the UK legal system was apt to address cases of human rights violations or not, there were already measures in place for alternative justice. Moreover, the incorporation of Human Rights Act 1998 into the UK courts was made possible. It has been successful as it provides for the enforcement of such rights in English courts. At this point, it is worth to note that the nature of the unwritten constitution of the UK was an impediment to fast integration of the legislations of the Human Rights Act 1998. In a way, the unwritten constitution is inflexible to the legal system when it comes to recognition of international laws for the benefit of citizens. The justification of the English laws inability to integrate into the Human Rights Act 1998 can be understood in the context discussed below.
The Definition of the European Convention on Human Rights
The Convention was mooted following the aftermath of the World War II (WWII) as a mechanism to protect primary human rights and freedoms. By1953 the Convention was already ratified by more than 40 nations which had already incorporated human rights into local legislative frameworks. The UK did not recognize the Convention in its English law because of lack of legal framework. Even though the UK was a signatory of the Convention, lack of written constitution curtailed efforts to incorporate the Convention. The alternative as mentioned above was to engage the ECtHR to listen to the British citizens’ claims. This took place until the enactment of the Human Rights Act 1998 after receiving of royal assent. However, judges and magistrates were not prepared in time to enforce the Act.
It must however be understood that the European Convention on Human Rights is independent from the European Community (EC). The Convention was created by the Council of Europe back in 1950 and since then, cases on human rights violation could be listened to by the ECHR headquartered in Strasbourg. On the other hand the EC later became the European Union (EU) created in 1957 to bring European nations together for economic and diplomatic affairs. The European Court of Justice in Luxemburg was set up by the EU to govern the economic block, but it remains different from the ECtHR.
How the Human Rights Act 1998 Integrates the Convention into UK Law
The one major requirement of the Human Rights Act 1998 is that the basic national and delegated legal provisions should be harmonised to conform to the legal framework of the Convention. Section 4 of the Human Rights Act 1998 gives the authority to the courts to rule whether or not the legislations are compatible with the Convention (Department for Constitutional Affairs 2006). The declaration for compatibility throws challenge to the English law makers to ensure that the provision of the UK legal framework conforms to those of the Convention. In case of hitches, the law makers have the opportunity to make amendments to the national and delegated legislations. The Government and the Parliament are vested with this power.
In the UK’s corridors of justice, any person who feels that his/her rights have been violated by public institutions like the political administration, the National Health Service (NHS), or the Police has right to justice (Great Britain: Parliament: Joint Committee on Human Rights 2006). According to sections 6 and 7 of the Human Rights Act 1998, plaintiffs can sue public authorities and private firms (Hoffman 2011). The determination of these cases follows the procedures of the ECtHR or uses previous decision of ECtHR to make judgements. This shows that the judicial precedents are affected. In addition, the section 3 of the Act obliges the judiciary to bestow effect to legislation in the best way to make English laws be as much compatible to the Convention as possible. The overall impact of this is that the Convention and the English Law create purposive approach for the interpretation of the Act (Department for Constitutional Affairs 2006). Consequently, the section 8 of the Act vests discretionary authority on the judicial processes and the courts to award plaintiffs their assistances or remedies in case of violation of their rights. It must however be noted that the Act does not integrate Art 13 of the European Convention on Human Rights.
Consequences of the Human Rights Act 1998
The impact of the Human Rights Act 1998 cannot be underscored given the controversies that it has raised since its inception in 1998. “The coherence of our domestic law is liable to be affected whether the basic approach of some area of law is changed or whether some ill-fitting and largely unnecessary principles are superimposed on to it” (Arden 2010, p. 5). One of the objectives of the Act was to bring in new judicial dispensation that would challenge the conventional power bureaucracies in order to create an inclusive culture. Debates have emerged from a different cohorts to explain the power of the country and the rights that an individual can be granted. The impetus of the Act is encouraging so far; but, there is a kind of potential political interference which may scuttle the gains made before. Glimpses into the debates have been raised by the former, the immediate former, and the current Prime Ministers of UK each accounting for their respective agendas of the Act.
The Human Rights Act 1998 has had many impacts in the UK legal front in both positive and negative ways. The benefits of the jurisprudence offered by the courts in Strasbourg according to Arden (2010) are substantial. Even though the basic human rights and freedoms of the citizens have been guaranteed, it has come at a cost. The aforementioned controversies were political in nature and have resulted into 557 court cases in the early period after the passage of the Act, while the average number of cases per annum have been approximately 400 (The Times, cited in Department for Constitutional Affairs 2006). The Act has also redefined the relationship between the citizens and the public institutions. From the discussion above, it is evident that the Human Rights Act 1998 is compatible with the European Convention on Human Rights. Hence, the Act is of potential help in dispute resolution in the private practice.