Human Rights Act Essay Example | Topics and Well Written Essays - 1500 words - 1

Human Rights Act - Essay Example The omission of the right to an effective remedy for violations of Convention rights (Article 13 ECHR) from the list of Convention rights which the Act made part of municipal law militated against the development of innovative remedies. So did the careful preservation of the principle of the legislative sovereignty of the Queen in Parliament, making it impossible to strike down primary legislation which is held to be incompatible with a Convention right. (The remedial regime would be much enhanced if the EU Charter of Fundamental Rights becomes legally enforceable through the implementation of the EU Constitution: parliamentary legislation which is incompatible with the Charter rights would then be ineffective to the extent of the incompatibility). Under section 4 of the Human Rights Act 1998, the higher courts can make a declaration of incompatibility, but that does not affect the validity or effectiveness of the incompatible legislation. Thirdly, on the other hand, the political pr ocess has proved to be responsive to the injection of human rights standards. The Act carefully preserved parliamentary sovereignty in the sense that courts are unable to misapply or strike down legislation on the ground of an incompatibility with a Convention right under the Act. ... This means that the ultimate interpretative principle does not now turn on the literal meaning or objective purpose of the legislative text but on the effect which will be best calculated to secure compatibility with Convention rights, subject to the constraint of the 'possibility' of a reading or effect in the light of the legislative text. There are important questions as to the point at which a reading or effectuation of legislation that is legitimate for a decision-maker in his or her institutional position in the state shades into illegitimate legislative action. However, subject to this it is clear that the literal reading of legislation, the intention of the legislature, and the mischief which the legislation was designed to address no longer offer a final answer to questions as to the meaning and application of legislation. To some extent this restricts the practical ability of Parliament to give effect to legislative purposes, at least in so far as the mode of expression leads to a result that is incompatible with Convention rights. Unlike the duty under section 3 of the Act, the power of one of the higher courts under section 4 to make a declaration of incompatibility in relation to legislation does not formally limit the capacity of the Queen in Parliament to give effect to Her legislative goals or the means by which Her Majesty can do so. However, a declaration under section 4 has some odd characteristics in the perspective of accepted constitutional principles. The Queen in Parliament has authorized judges to declare that parliamentary legislation is in some sense wrongful by reference to the objective, legal standards set by Convention rights. Admittedly