The Effect of European Law

(if any) on English Law

17th March 2014
 European Union Law
What is the difference between
the European Union & the countries in Europe
the European Court of Justice and the
European Court of Human Rights
 The European Council
is an institution of the European Union. It comprises the
heads of state or government of the EU member states.
The European Council has no formal legislative power but
is charged under the Treaty of Lisbon with defining "the
general political directions and priorities" of the EU. It is
thus the EU's strategic (and crisis solving) body, acting as
the collective presidency of the EU. The meetings of the
European Council (EU summits), are chaired by its
president and take place at least twice every six months;
usually in the Justus Lipsius building, the headquarters of
the Council of the European Union in Brussels.
 The Council of Europe
is an international organization promoting co-
operation between all countries of Europe in the
areas of legal standards, human rights, democratic
development, the rule of law and cultural co-
operation. It was founded in 1949, has 47 member
states with some 800 million citizens, and is an
entirely separate body from the European Union
(EU), which has 28 member states. Unlike the EU,
the Council of Europe cannot make binding laws.
The two do however share certain symbols such as
the flag and the anthem.
 The European Court
of Justice (ECJ)
Officially just the Court of Justice, is the highest
court in the European Union in matters of European
Union law. As a part of the Court of Justice of the
European Union it is tasked with interpreting EU
law and ensuring its equal application across all EU
member states. The Court was established in 1952
and is based in Luxembourg. It is composed of one
judge per member state currently 28 although it
normally hears cases in panels of three, five or
thirteen judges. The court has been led by
president Vassilios Skouris since 2003.
 The European Court of
Human Rights (ECtHR)
is a supra-national or international court established by
the European Convention on Human Rights. It hears
applications alleging that a contracting state has
breached one or more of the human rights provisions
concerning civil and political rights set out in the
Convention and its protocols. An application can be
lodged by an individual or other contracting states, and,
besides judgments, the Court can also issue advisory
opinions. The Convention was adopted within the context
of the Council of Europe, and all of its 47 member states
are contracting parties to the Convention. The Court is
based in Strasbourg, France.
 Parties to the ECHR
x
 Post WW2 Europe
The European Convention on Human Rights (ECHR)
(formally the Convention for the Protection of
Human Rights and Fundamental Freedoms) is an
international treaty to protect human rights and
fundamental freedoms in Europe.
Drafted in 1950 by the then newly formed Council
of Europe, the Convention entered into force on 3
September 1953. All Council of Europe member
states are party to the Convention and new
members are expected to ratify the convention at
the earliest opportunity
 The ECHR and the ECtHR
The ECHR established the ECtHR. Judgements finding violations
are binding on the States concerned and they are obliged to
execute them. The establishment of a Court to protect
individuals from human rights violations is an innovative feature
for an international convention on human rights, as it gives the
individual an active role on the international arena (traditionally,
only states are considered actors in international law).
The European Convention is still the only international human
rights agreement providing such a high degree of individual
protection. State parties can also take cases against other state
parties to the Court, although this power is rarely used.
 Right to . . .
x
 Recourse to English Courts
In order for British citizens to avail themselves to these rights
however, they had to make claim at the the ECtHR at
Strasbourg. And they could only do this AFTER they had
exhausted their claims in the English Courts (HC, COA, HOL).
This was a lengthy and costly process. e.g. McLibel.
The Labour Party in the 1990s campaigned on the platform of
Rights Brought Home. When they won the elections, the only
challenged that remained was How?
 The Difficulty
English Courts enforced English Law. They refused to recognize
international obligations unless these were included in statutes
or delegated legislation.
However even these statutes and del leg were subject to change
by future statutes, even indirectly.
We say the English Constitution does not allow the law to be
entrenched.
 The Human Rights Act
The HRA 1998 aims is to "give effect" in UK law to the rights
contained in the ECHR.
The Act makes available in UK courts a remedy for breach of a
Convention right, without the need to go to the ECtHR in
Strasbourg i.e. it makes those remedies available in English
Courts.
 The HRA 1998
In particular, the HRA makes it unlawful for any public body to
act in a way which is incompatible with the Convention, unless
the wording of any other primary legislation provides no other
choice.
It also requires the Judiciary (including tribunals) to take account
of any judgment of the ECtHR in Strasbourg and to interpret
legislation, as far as possible, in a way which is compatible with
Convention rights.
 The HRA 1998
However, if it is not possible to interpret primary legislation so as
to make it compatible with the Convention, the judges are not
allowed to override it. All they can do is issue a declaration of
incompatibility.
This declaration of incompatibility does not affect the validity of
the Act : in that way, the Human Rights Act seeks to maintain the
principle of Parliamentary supremacy.
However, judges may strike down secondary legislation. Under
the Act, individuals retain the right to sue in the Strasbourg court