No society is safe from torture and brutality on the part of public officials. It is therefore dangerous for democracy to permit judges to become politicians in robes and to substitute their moral judgements for those of elected representatives on issues outside their essential field. The underlying objective of the study is to suggest ways in which the K can have a robust system of protecting human rights while at the same time ensuring that judicial assertiveness does not undermine parliamentary democracy.
The Human Rights Act contains the following rights
Article 2: Right to life
Article 3: Prohibition of torture
Article 4: Prohibition of slavery and forced labour
Article 5: Right to liberty and security
Article 6: Right to a fair trial
Article 7: No punishment without law
Article 8: Right to respect for private and family life
Article 9: Freedom of thought, conscience and religion
Article 10: Freedom of expression
Article 11: Freedom of assembly and association
Article 12: Freedom to marry
Article 13: Right to an effective remedy
Article 14: Prohibition of discrimination
1. British governments needs to take great care to respect core human rights which will reduce the scope for clashes with the judiciary
2. The system of judicial appointments for members of the Supreme Court needs to be re examined – parliament should arguably vote to approve the appointment of nominees to the supreme court
3. The UK should open time limited negotiations with the council of Europe to make substantial reforms to the way that the court is run and its caseload managed – this is to assure the judicial competence of new judges and greater efficiency of the court
4. The UK should consider withdrawing from the jurisdiction of the ECHR and establish a supreme court in London as the final appellate court for human rights law
Over previous decades, several commonwealth countries such as Australia and New Zealand have moved to create their own final courts of appeal. They have dispensed with the jurisprudence of the appellate Committee of the Privy Council.
Judges should be sufficiently independent to enable them to make decisions without fear or favour but they must not be totally unaccountable and they should have a key role in certain areas of public life however their role should not extend too far into the political arena.
Another objection is that the UK is subjected to a virtually unaccountable, supra-national bureaucracy in Strasbourg. Furthermore, fundamental changes to a country’s constitution should not be introduced without proper public discussion, understanding and consent. In addition, individuals lack the knowledge or the resources to fight for their legal rights. Only pressure groups will be able to find the money and provide the legal expertise. Therefore, the role of pressure groups needs to be acknowledged.
When the European Convention of Human Rights was originally drafted and ratiﬁed, the member states of the Council of Europe came together to establish a court that would provide objective, international standards of human rights to be enforced across Europe. The Council was formed in 1949, when the atrocities of the Second World War were understandably at the forefront of the member state governments’ thinking and the terrible human rights abuses taking place behind the Iron Curtain were beginning to become apparent. It was necessary then to enunciate clearly what constituted basic standard of human dignity, which the citizens of any European state were entitled to expect from their government. Britain played a key role at this time, it was the only one of the ten original member states that had both fought Nazi Germany and not been occupied. As such it brought signiﬁcant moral authority, to the process of determining what form…