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The United Kingdom's ratification of the European Convention for the Protection of Human Rights and Fundamental Freedom (ECHR)1 and the enactment of the Human Rights Act 19982 have lead to the incorporation of the ECHR into domestic laws. In this respect, however, while the HRA is undoubtedly a step in the right direction, such that through its enactment, human rights are now guaranteed within the nation and remedies are provided within the UK jurisdiction…
In this respect, this essay will argue that aside from the HRA's failure to properly incorporate the Convention rights; a more crucial failure is the fact that it leaves courts hesitant to apply the legislation due to the vague guidelines given under section 3 of the Act.
As previously mentioned, the HRA is meant to give guarantees to the rights and freedoms embodied in the convention. Among its effects, the Act renders it "unlawful for a public authority to act in a way which is incompatible with a Convention right."4 In addition, it also obliges courts to "[s]o far as possible to do so"5, ensure that "primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights"6 and in instances where it is not possible, to "make a declaration of that incompatibility"7. Since the Act came into effect, however, the HRA's significance in successfully protecting the rights and freedoms embodied in the Convention has been limited by the two aforementioned provisions.
First, with regard to the obligation posed on authorities under section 6, case law has exhibited difficulties in determining whether or not the pers ...
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