The areas where the EU is bound to be applicable come with the inherent probability of overriding the EU laws over the national legislation of the member systems. The two independent ideas make the system work, one being called EU supremacy, which gives the EU rules a much higher status over the national laws of any member country. The other prime contributor is the direct effect phenomenon, which ensures that the EU laws can directly rely on the member state courts.
The supremacy concept devises the relationship between both the EU law and the national law. It states that in case of any discrepancy between both the regulations, the EU law will be the prevalence. All the member states voluntarily agree to obey the EU supremacy law. The primary intention behind giving the EU body supremacy was to ensure a unified and justified judicial system to the citizens of member countries. If the national laws had been given sovereignty over the EU laws, then it would not be practically possible to implement a unified of rule in the member countries.
UK has followed the supremacy principle for most of the time since it has been a part of the EU. The communities act approved in 1972 in the UK accepted this supremacy of the EU laws. The discrepancy in the EU and national regulations is significantly low to observe than the other member countries.
The legislative architecture operating in the UK has to focus on the tension between the EU and national constituents remaining settled. In this respect, different countries observe different levels of difficulty depending upon their constitutional rituals. The particular dilemma faced by the UK was the parliament supremacy observed in the country. Parliament has sovereignty over the legislature in the UK and is solely responsible for making and unmaking any law. Whenever the areas of supremacy overlap, this gives rise to a contradiction. Initially, the UK adopted the dualist approach. This approach signified that the EU laws would only be put into effect when the parliament implemented this domestic act. However, when parliament approved this, the courts were suggested to dis-apply the national legislation in the case of discrepancy to continue observing the supremacy concepts. The newer approach reformulated the previous notion of parliament sovereignty, where the parliament was all in all for the formulation of the jurisdiction.
However, in the recent past, EU supremacy has been criticized for its interference with national laws. So the current rules were focused on inducing some restrictions on the supremacy principle. A point to be noted here is that the UK did not challenge the supremacy principle, but it was seeking a way to limit the range of applicability. However, it was still an unavoidable fact that the UK was the country where the sovereignty of the parliament has given the doctrine, so at any time, the parliament could decide to withdraw the UK from the EU.
Miller v Secretary of State for Exiting European union in 2017, the UK’s supreme court concluded the matter by stating that undoubtedly, the courts were bounded to dis-apply the national laws in case of conflict. However, this duty was not absolute as a rule and does not apply to any such legislation that tends to alter the EU laws. After this event, Brexit shortly started getting momentum. British exit was a general public referendum carried out in 2016, where the majority demanded the exit from the EU. Thu in January 2020 UK formally left the European Union. But it has not nullified the impact of the EU at once. Because now the EU has entered a transition period or the implementation period. This period will continue until the end of the contemporary year. The status of the country changes to the third country, where the UK will no longer be eligible to participate in the European Union political bodies. During the implementation period, the laws of the EU will remain valid. Still, the direct effect of the EU on the UK legislation will be frozen for the time new domestic legislation will be devised. But the supremacy of the EU will become void once this implementation period is over.
After the span of membership, the UK has embraced the principle of EU supremacy like none of the other member states has done. The jurisdiction policies of Germany can provide a good comparison. Now in the withdrawal phase, sovereignty will still be in effect but will lose the rights gradually. When Britain first accepted the 1972 Act, it had not foreseen that the dominance for which the UK was agreed would take this form. Experts also predict that the UK has, although eventually death with the supremacy principle legislatively, the supremacy issue of the EU will hold in effect. It could not vanish on the exit day.
Explain the key sections of the Human Rights Act (HRA) 1998. To what extent has the HRA 1998 enhanced the recognition and protection of human rights in the law of the United Kingdom (UK)?
The fight for human rights is dated back decades ago. Precisely speaking, it got the acknowledgement in 1215 with the introduction of the Magna Carta as a charter for human rights. With this, it was the first time that it was acknowledged that the legislation should be applied to the monarchy, and it was also for the very first time that it was realized that the subjects of the crown had their legal rights too. Then gradually, the movements for human rights got their roots in society it was in 1950 when the campaign gained significant momentum with the introduction of the human rights suggested by the European Union. The EU council used the declaration of universal human rights as a common ground to secure the human rights of European citizens in the same field. This step was taken in the wake of the disruptive circumstances caused by World War II.
The efforts to teach these right into the day-to-day lives were challenging and took the other two decades. In 1997 tony Blair added the implementation of human rights into his party manifesto. This manifesto assured that the unified rights would act as the floor for human rights, not as the ceiling, and the UK parliament would be free to enhance these rights as per their wish. In the very next year, in 1998, the Human Rights Act 1998, encircling the liberties granted by the European council, was added to the domestic laws.
The human rights act of 1998 enabled the citizens to take their complaints regarding human rights directly to the British courts. Before the implementation of the Act, the citizens who intend to report the violation of the EU constitution have to bring forth the case in front of the European court peculiar for addressing human rights situated in France.
The human right article has a series of sections, each having a different area of operation. Mostly the articles are taken from ECHR and have been incorporated into the domestic laws HRA 1998. The Act provided the citizens with their right to life. The public and government authorities were not granted the right to end the life of any individual. The governments were encouraged to make laws to protect the lives of the citizens. The subsequent articles provided the citizens with the freedom of expression and assembly. The citizens were also given the right to observe the religion was also offered to the citizens. The Act also focused on providing the citizens liberty from slavery and inhumane treatment. The discrimination in the providence of human rights was abolished, and unified human rights and freedom were granted to every single citizen. The Act of 1998 also provided citizens with the right to liberty and justified trial.
Further to strengthen citizen security, the Act also abolished any sort of punishment without law. The citizen’s private life was also respected by the Act, and the right to marry and start a family was also given to all citizens without any bound. The Act also abolished the death penalty. HRA 1998 was designed in a way to provide the general public with the maximum benefit, as it granted rights to the citizens for the peaceful enjoyment of property education and liberal participation in electing the government.
Some of the rights of the act 19998 are absolute, like forbidding torture of any citizen. However, few of the rights are qualified. The Act has made all the rights of the European Convention directly executable in the UK courts. This transition brought significant changes in the interpretation of the legislation by the UK courts. Because section 6 clearly states that it is unjustified for any government and public authority to do anything incompatible with the EU Convention right. Furthermore, section 3 of the Act advises the courts to devise the legislation in a way that is in coherence with the EU conventional laws to avoid any discrepancy.
The impact of the HRA on the general public was that it brought ease for UK citizens by bringing their rights to their homes, so it was more convenient to report violations of fundamental human rights. Secondly, it bound the UK judges to follow the convention’s rights. This initiative induced the concept of unified rights. HRA also has cast some positive impacts on the government and administration and caused a sense of more responsibility; the engagement of the NHS and police departments has brought clear benefits for the general public. The effect of HRA on the UK courts is slightly ambiguous as initially, it was predicted that soon after the approval of the Act, the courts would be flooded by cases. However, an empirical study on the impact of these rights narrated that there is little evidence that shows the significant increase in the claims. However, the induction of the HRA was frequently used to settle the ground for cases pursued after HRA.
The impact of the HRA on parliament is not much. The comparative study of different countries provides a vivid picture that the UK has the least declarations of incompatibility than the other member states. A significant disruption was faced in 2005 with the introduction of the terrorism act 2005. Because legislation under section 4 of HRA was regarded as low profile by the UK parliament in that scenario. 2000’s onwards, HRA and the EU court were targeted by the significant backlash for too much activism and putting stress on European affairs.
Additionally, it is also being criticized that the Act provides favourable environments for terrorists and put the judicial proceedings ineffective. Section 2 of the Act is now also viewed as giving supremacy to Strasbourg over the UK courts. However, the debates are getting hype every single day, and it might be a nuclear option on the table to get free from the court or to negotiate with the EU council for the disapplication of section 2.