Human Rights and Legal System Essay

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HUMAN RIGHTS AND LEGAL SYSTEM To follow the Supreme Court or Strasbourg? Judicial precedent and the Human Rights Act 1998 Manchester City Council v Pinnock [2010] UKSC 45 Supreme Court Dr Steve Foster* Introduction The passing and coming into force of the Human Rights Act 1998 was intended to have a profound effect on the protection of human rights and civil liberties in domestic law. However, it should not be forgotten that the Act has also affected the general legal system. For example, as the courts are now bound to provide greater redress for breach of rights under the European Convention on Human Rights,1 its provisions have affected the remedies that are available from the domestic courts,2 and the process under which those rights might or must be accessed.3 Perhaps most significantly, the Act creates new rules on the following of precedent, as s.2 of the Act states that the domestic courts must take into account (author’s italics), inter alia, the decisions of the European Court of Human Rights when determining any question involving any Convention right. This is to ensure that Convention rights, case law and principles are given appropriate effect by the domestic courts. This should in turn ensure that the parties are allowed to argue their case on such principles and that the courts are, as far as possible, able to decide the case in conformity with the Strasbourg case law. This, of course, will in many cases obviate the need for the dispute to be sent to the Strasbourg Court; as one of the main purposes of the Act is to ensure conformity with Convention law and, thus, to provide adequate and similar remedies at the domestic level. The inclusion of s.2 in the Act thus begs the question whether the traditional principles of judicial precedent are now abandoned in place of a rule which compels the domestic courts to follow the decisions

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