4.5 Summary This section has examined the ECHR and the HRA 1998 discussing briefly their effects on English law. The mere incorporation of the Convention rights into English law without the enforcement machinery takes some of the power out of the Convention at the level of the English UK domestic courts. However, the incorporation of the rights does make far reaching changes to the way in which legislation is scrutinised in Parliament, and to the operation of precedent, as judges in court now have to take notice of cases in the ECtHR and other relevant cases. Much of the development of both the judicial review process of judges reviewing decisions by central, devolved and local government and common law will depend on whether English judges choose to vigorously support the Convention and uphold rights, using where necessary a purposive rather than a literal approach to interpretation. However, although they can declare that legislation is incompatible with the Convention they cannot invalidate that legislation. The limit on their actions when they are faced with incompatible legislation seems problematic. This is a problem caused by the decision not to incorporate Article 13, specifying that there must be the provision of an effective remedy in national courts. This is a major area of national court weakness in the UK’s chosen method of incorporating the ECHR. The primary rationale for discussing these matters is to consider the European dimensions of English law with a view to issues of legal method, to obtain a basic grasp of how the ECHR as a treaty has operated at European level for 50 years and what changes may occur now that the Convention rights have been incorporated into the English legal system. In addition, students need to be familiar with the terminology used to discuss treaties, and be careful not to confuse the ECHR with the EC or EU, or both. Some of the reasons for the confusion can be found in the similar terminology. Students consistently confuse the Council of Europe (which among other things was instrumental in ensuring the creation of the ECHR) with similarly named institutions in the EC and now the EU (eg, the European Council is now called the Council of the European Union). Part of the difficulty confronting the student lies in the close proximity between names (for example, the Council of Europe and the Council of the European Community). In addition the similar time scales when the Convention was signed in 1951 and the Treaty of Rome in 1957 (setting up the EC) can cause confusion. Part of the difficulty is just the unfamiliarity of the area, the institutions and the vast array of new concepts and names. These problems will not just go away but they will lessen as understanding of differences and similarities increases. The European context of English law is becoming increasingly important. This second section of this chapter was designed to help students grasp the significance of the ECHR before and after its partial incorporation into English law. It is predicted that it will be a rapid growth area for the English legal system and it is important that it is not confused with anything else. Yet it is also important to note that the EC and EU make reference to the ECtHR. Therefore, it is not really sufficient to say that these areas are entirely separate as they do have interrelationships. With these distinctions in mind, it is now appropriate to turn to the EC, EC law and the EU.

DOI link for 4.5 Summary This section has examined the ECHR and the HRA 1998 discussing briefly their effects on English law. The mere incorporation of the Convention rights into English law without the enforcement machinery takes some of the power out of the Convention at the level of the English UK domestic courts. However, the incorporation of the rights does make far reaching changes to the way in which legislation is scrutinised in Parliament, and to the operation of precedent, as judges in court now have to take notice of cases in the ECtHR and other relevant cases. Much of the development of both the judicial review process of judges reviewing decisions by central, devolved and local government and common law will depend on whether English judges choose to vigorously support the Convention and uphold rights, using where necessary a purposive rather than a literal approach to interpretation. However, although they can declare that legislation is incompatible with the Convention they cannot invalidate that legislation. The limit on their actions when they are faced with incompatible legislation seems problematic. This is a problem caused by the decision not to incorporate Article 13, specifying that there must be the provision of an effective remedy in national courts. This is a major area of national court weakness in the UK’s chosen method of incorporating the ECHR. The primary rationale for discussing these matters is to consider the European dimensions of English law with a view to issues of legal method, to obtain a basic grasp of how the ECHR as a treaty has operated at European level for 50 years and what changes may occur now that the Convention rights have been incorporated into the English legal system. In addition, students need to be familiar with the terminology used to discuss treaties, and be careful not to confuse the ECHR with the EC or EU, or both. Some of the reasons for the confusion can be found in the similar terminology. Students consistently confuse the Council of Europe (which among other things was instrumental in ensuring the creation of the ECHR) with similarly named institutions in the EC and now the EU (eg, the European Council is now called the Council of the European Union). Part of the difficulty confronting the student lies in the close proximity between names (for example, the Council of Europe and the Council of the European Community). In addition the similar time scales when the Convention was signed in 1951 and the Treaty of Rome in 1957 (setting up the EC) can cause confusion. Part of the difficulty is just the unfamiliarity of the area, the institutions and the vast array of new concepts and names. These problems will not just go away but they will lessen as understanding of differences and similarities increases. The European context of English law is becoming increasingly important. This second section of this chapter was designed to help students grasp the significance of the ECHR before and after its partial incorporation into English law. It is predicted that it will be a rapid growth area for the English legal system and it is important that it is not confused with anything else. Yet it is also important to note that the EC and EU make reference to the ECtHR. Therefore, it is not really sufficient to say that these areas are entirely separate as they do have interrelationships. With these distinctions in mind, it is now appropriate to turn to the EC, EC law and the EU.

4.5 Summary This section has examined the ECHR and the HRA 1998 discussing briefly their effects on English law. The mere incorporation of the Convention rights into English law without the enforcement machinery takes some of the power out of the Convention at the level of the English UK domestic courts. However, the incorporation of the rights does make far reaching changes to the way in which legislation is scrutinised in Parliament, and to the operation of precedent, as judges in court now have to take notice of cases in the ECtHR and other relevant cases. Much of the development of both the judicial review process of judges reviewing decisions by central, devolved and local government and common law will depend on whether English judges choose to vigorously support the Convention and uphold rights, using where necessary a purposive rather than a literal approach to interpretation. However, although they can declare that legislation is incompatible with the Convention they cannot invalidate that legislation. The limit on their actions when they are faced with incompatible legislation seems problematic. This is a problem caused by the decision not to incorporate Article 13, specifying that there must be the provision of an effective remedy in national courts. This is a major area of national court weakness in the UK’s chosen method of incorporating the ECHR. The primary rationale for discussing these matters is to consider the European dimensions of English law with a view to issues of legal method, to obtain a basic grasp of how the ECHR as a treaty has operated at European level for 50 years and what changes may occur now that the Convention rights have been incorporated into the English legal system. In addition, students need to be familiar with the terminology used to discuss treaties, and be careful not to confuse the ECHR with the EC or EU, or both. Some of the reasons for the confusion can be found in the similar terminology. Students consistently confuse the Council of Europe (which among other things was instrumental in ensuring the creation of the ECHR) with similarly named institutions in the EC and now the EU (eg, the European Council is now called the Council of the European Union). Part of the difficulty confronting the student lies in the close proximity between names (for example, the Council of Europe and the Council of the European Community). In addition the similar time scales when the Convention was signed in 1951 and the Treaty of Rome in 1957 (setting up the EC) can cause confusion. Part of the difficulty is just the unfamiliarity of the area, the institutions and the vast array of new concepts and names. These problems will not just go away but they will lessen as understanding of differences and similarities increases. The European context of English law is becoming increasingly important. This second section of this chapter was designed to help students grasp the significance of the ECHR before and after its partial incorporation into English law. It is predicted that it will be a rapid growth area for the English legal system and it is important that it is not confused with anything else. Yet it is also important to note that the EC and EU make reference to the ECtHR. Therefore, it is not really sufficient to say that these areas are entirely separate as they do have interrelationships. With these distinctions in mind, it is now appropriate to turn to the EC, EC law and the EU.