European Convention Human Rights

AIM: To elaborate upon the issues raised by the statement of Section 3 [of the Human right act 1998] by Lord Nicholls in Ghaidan v Godin-Mendoza [2004] 2 AC 557

European Convention Human Rights (ECHR) came into existence in 1951. The Convention right means “the rights and fundamental freedom”1 which was sponsored by the council of Europe with the help of British civil servants and the future Lord Chancellor, Lord Kilmuir. It has been drafted and intended to extend the same civil liberties which existed in United Kingdom to other European states. From 1965 onwards United Kingdom allowed individual petition under the bill of European Court of Human rights.

Human rights Act 1998 came into force in England and Wales on 2nd October 2000. The purpose of human rights act is to “give further effect” in UK law same rights which European Convention on Human Rights obtained. It makes public authorities more responsible for their decisions and makes justice's works to change in the UK system. Before Human rights act 1998 the human rights were directly applied to Strasbourg Court. For many years anyone who claimed their rights in UK had no choice to bring the case to the Strasbourg court. They were unable reached their rights and make arguments in the UK courts. 2. Human rights act 1998 has been planned in such a way that minimal impact on the traditional view of parliamentary sovereignty. It's a basic rights and freedom for all human being who are entitled.3

Under the Human right act 1998 (HRA) Section 3 ‘So far as it is possible to do so', primary legislation and subordinate legislation, must be read and given effect in a way which is compatible with the convention rights' (s.3 (1)). If the court doesn't interpret the statute in the way that is compatible with the European convention on human rights (ECHR) it can be precede a formal to the incompatibility.

The main point which aroused in S.3 is the word ‘possible'. However the understanding of ‘possible' word is not easy and requires experts to understand its meaning. With the passage of time judges have developed conventions (or traditions) that guide them to finding the meaning of law which parliament and other rule- making bodies' produce. Rules which are set out in statutes should be able to deal with different classes of people in different situations. It is for the judges who can resolve and find solution to the problems and keeping in view the application of the Human Rights Act 1998.

Before the Human rights act 1998 have been passed there were some fundamental rights on which cases can only be interfered with the parliament which is same as section 3.

1. UK Parliament Acts, Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland.

2. http://www.justice.org.uk/images/pdfs/HRAINT.PDF

3. Houghton Miffin Company (2006)

Lord Nicholls also considered that the legislation is interpreted to convey the purpose of section 3 which may be well-suited to push the force of the fundamental. He also said that section 3 is the main section in human rights act 1998. The significance of the section 3 is that all the past and future acts of parliament have to be made compatible with the convention rights. The section 3 is not difficult section to which we unable to resolve ambiguities in the word of the statute because we are to read from statute.4.

The leading judgment in the case of Ghaidan v Godin-Mendoza [2004] was given by Lord Nicholls the point he made there that the agreement of judicial which specifically states that section 3 (1) may not to require to make decision from the court which need by legislative delibersation.5.

In the case of Ghaidan v Godin-Mendoza [2004], the defendant Mr Juan Godin-Mendoza was living with his sex partner Mr Hugh Wallwyn- James, who was on oral residential tenancy of the basement of flat at 17 Cresswell garden, London, SW5. Before the death of Mr Hugh on 5th January 2001 he lived with defendant on same address on where Mr Mendoza is still living. After the death of Mr James the landlord of the flat Mr Ahmed Ghaidan brought the case in the West London County Court with the claim of possession of flat. The County Court Judge Cowell held that after the death of Mr James Mr Mendoza is not entitle to have the tenancy of flat because he was not spouse of Mr James a member of original tenant's ‘family' Under the paragraph 3(1) of Schedule 1 to the Rent Act 1977.

Mr Mendoza appealed in court of Appeal where it was held that he is entitled to have tenancy of the flat as a statutory tenant under paragraph 2. The House of Lord have held in previous case that living with same sex partner may constitute a family and spouse.6 When the decision was made on behalf of Mr Mendoza the landlord Mr Ghaidan appealed to lordships House. In Paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977 says that if original tenant residing in dwelling-house after the death of original tenant he/she entitle to have the dwelling-house and if a person living with original tenant as being his wife or her husband will be treated as spouse of original tenant. The paragraph 2 does not apply here that a person who is a member of a family of original tenant living with him 2 years before his death then after his death one of them have to be decide by agreement which one will be entitled to have dwelling-house. In the case Fitzpatrick's it was decided that the homosexual couples may have the entitlement as original tenant by succession under the Para 3 if he pays rent or a market rent which is valuable price under the statutory tenancy.

4. lord nicholls, , para. 29-30; Lord steyn, para 44; Lord Rodger, para. 119; Lord Millet para 67.

5. Ghaidan v Godin- Mendoza [2004] UKHL 30, [2004] 2 AC 557 at para 24

6. Fitzpatrick v. Sterling Housing Association [2001] 1 AC 27.

In Godin-Mendoza's claim the difference in treatment infringes of article 14 of ECHR read the conjunction with article 8. Where article 8 does not required the state to provide security of tenure of the member of tenant's family. Under section 3 Human Rights Act 1998 ‘read and give effect' to legislation in the way as convention rights. In Section 3 Courts intent to read Para 2 where homosexual couples living together as the same way as the heterosexual couples living. Related to Para 2 Mr Godin-mendoza is entitled to have statutory tenancy.

Lord Nicholls argued in the Ghaidan that even though the language is similar to gender-specific, the ‘social policy underlying the act.7 . (Namely, that the survivor of a cohabiting heterosexual couple has security if trnure)8 is similar related to homosexual couples because of the ‘an exuviated relationship'9. He mainly focused on the relationship which may eligible to have entitled of statutory tenancy. He said that section 3 of Human Right Act 1998 is more powerful section in which court have to ‘re-write' the legislation which was found incompatible with European Convention Human Rights. House of Lord approve to court of appeal that the section 3 interpretation in Rent Act 1977 where it is defined that a spouse of heterosexual relation is the original tenant as his or her wife or husband. In the same way as same-sex couples if they were his or her wife or husband.10.

According to para 2 of schedule 1 of the Rent Act 1977 that the same sex couples and opposite sex couples cannot withstand scrutiny. In the case Petrovic v Austria (1998) the court refused to give parental allowance which is only available for mothers. For household task society are more contributing for upbringing of children where there are more extended allowances as parental leave to fathers. This allowance is established in 1990 where father is eligible for parental leave allowance. European courts the Human Rights act established in the case Karner v Austria [2003] held that the treatment of homosexual is succession to tenancies under Austrian law they said that cohabiting homosexual couples should be treated as a survivor cohabiting homosexual couples are treaded under para 2. Before the decision of the case Mr Wallwyn-James died couples of years before.

7. Ibid para 35

8. Ibid para 35

9. Ibid., para 17

10. Ibid, para 35

In the case Regina .v. A [2001] UKHL. 25 the House of Lord held that the interpretation of obligation under Section 3 was a strong Act. Lord Slynn said that courts are not allowed to ask question in a rape case from a women with her previous sex relationship. This will make prosecution unable to explain the situation from which they have gone through11. According to section 2 of Sexual Offence Act 1979 judges are not allowed to cross examination by or on behalf of defendant sexual relation with another person other than their offence until unless defendant allow itself.

Lord Steyn said that the section 3 under Human Rights Act 1998 have strong obligation in a rape case he said the language have two different meaning where there is no ambiguity. It is far difficult to resolve the meaning of absurdity or ambiguity.12. Judges have to struggle to find the convention of interpretation. Judges required assistant to understand section 3 however in the case R .v. A [2001] UKHL. 25 the women victim s of rape protected herself for having pervious history of her sexual relationship for having cross-examination parliament agree with her intention and statutory language. Nowadays section 3 nevertheless is applied as the interpretation to authorize the advocacy of a republic. However in Regina V A [2001] Court of Appeal granted the declaration because the interpretation obligation are applying to required the courts to measured that weather the feasible to interpret a requirement.13

The judgement given by House of lord in R .v. A [2001] UKHL. 25 (Complainant's sexual history) this may be “wishful thinking” by Lord Chancellor. It also stated that in the case R .v. A [2001] UKHL. 25 that sometimes it could unfair the trial when questioning about a rape and complainant's pervious sexual relation.

Conclusion

The issue which has been commented upon on section 3 that the section interpretative obligation not only applies on Act which have been passed but also the Acts which have to be passed. However, if a later act conflicted with an earlier act then earlier act would be repealed the extended of the inconsistency. Although the states may need to go further for some cases and may need positive obligation which might mean instance and the authorities which are responsibilities for prison to take step and to avoid prisoner for being ill-treatment by colleague prisoners.14.

11. R v. A (no 2) (2001) UKHL 25; (2002) 1 AC 45; (2001) 3 All ER 1, paras 44 - 46.

12.R (Rushbridger) v. Attorney-General (2003) UKHL 38; (2004) 1 AC 357; (2003) 3 All ER 784.

13.http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm

14. Starmer K, “European Human Rights Law”, LAG 1999

Bibliography

Baker (ed), Human Rights Act 1998: A Practitioner's Guide, Sweet & Maxwell, 1998

Clements, Mole, Simmons, European Human Rights: Taking a Case Under the Convention, Sweet & Maxwell, 2nd Edition1999

Human rights in the UK: an introduction to the Human Rights Act 1998

Second edition By David Hoffman published on 2006

Judicial reasoning under the UK Human Rights Act  By Helen Fenwick, Gavin Phillipson, Roger Masterman

The law-making process sixth edition By Michael Zander published on 2004 

Periodical Articles, Other Published Sources And Official Document

Alec Samuels Statute Law Review, Human Rights Act 1998 Section 3: A New Dimension to Statutory Interpretation, Reader in Law, University of Southampton, Stat Law 2008 29 (130), Oxford University Press 2008

http://slr.oxfordjournals.org/cgi/content/full/29/2/130#FN20

http://www.justice.org.uk/images/pdfs/HRAINT.PDF

UK Parliament Acts, Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen's Printer for Scotland.

http://www.lexisnexis.com/uk/legal/search/runRemoteLink.do?bct=A&risb=21_T8080877367&homeCsi=274768&A=0.7173137853822285&urlEnc=ISO-8859-1&&dpsi=02O0&remotekey1=DOC-ID&remotekey2=220624&service=DOC-ID&origdpsi=02O0

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http://books.google.co.uk/books?id=-vfX0wfW_E8C&pg=PA185&lpg=PA185&dq=section+3+so+far+as+it+is+possible+to+do+so&source=bl&ots=-ZGDueMesa&sig=Yb_eyelNRTyi6k0B7kJ1yYHGQB4&hl=en&ei=X23oSvyADqXbjQfJwLSzCA&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAgQ6AEwAA#v=onepage&q=&f=false

http://books.google.co.uk/books?id=heIKw0FfnNcC&pg=PA246&dq=lord+nicholls+human+rights+act+1998#v=onepage&q=lord%20nicholls&f=false

http://books.google.co.uk/books?id=7bQakM9B7TYC&pg=PA119&dq=lord+nicholls+human+rights+act+1998&ei=nX7oSuW7A5HENsHs6IwM#v=onepage&q=lord%20nicholls%20Ghaidan%20v%20Godin-%20Mendoza%20&f=false

http://books.google.co.uk/books?id=7bQakM9B7TYC&pg=PA119&dq=lord+nicholls+human+rights+act+1998&ei=nX7oSuW7A5HENsHs6IwM#v=onepage&q=lord%20nicholls%20human%20rights%20act%201998&f=false

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Under section 29 Criminal procedure and investigation Act 1996 the defendant have to cross- examine her previous sex relationship for the evidence. Where section 41 of Youth Justice and criminal Evidence Act 1999 ruled that the consensual sexual intercourse with the other partner might be put the appellant in cross-examination and if appellant might not be cross-examined the evidence could be lead about her sexual relationship with defendant then the statement which will be prepared could be not put in the evidence. Defendant appealed against judge's rulings but court of Appeal held that the first ruling was an error which made by judges in which they said appellant to cross-examine the sexual intercourse with defendant. Defendant appeal and indicate the court to read section 41 of the 1999 Act and accordance with section 3 Human Rights Act 1998.

1. Introduction.

The statute law is the major source of law in England and Wales. However the understanding of legislation is not easy and require experts to understand its meaning. With the passage of time judges have developed conventions (or traditions) that guide them in finding the meaning of the laws which parliament and other rule-making bodies produce. Rules which are set out in statutes should be able to deal with different classes of people in different situations. It is imperative to look how the law sets out to achieve that aim. It is worth appreciating to see the difficulties of legislating in controversial areas, the challenges for those drafting such law; what will happen when a factual situation arises which have never been imagined or thought of by the legislators. It is for the judges who can resolve and find solution to the problems in such like awkward situations keeping in view the application of the Human Rights Act 1998.

2. Aim.

To high light the role of judiciary in interpreting statutes/developing the common law and impact of European communities/European convention on Human Rights through the Human Rights Act (1998) on it.

3. Preview.

a. The role of judiciary in interpreting statutes/developing the common law.

b. Statutory Interpretation.

c. Application of EC Law in UK cases.

d. Case note involving statuary interpretation and impact of human rights act and ECHR.

e. Conclusion

5. The Role Of The Judiciary In Interpreting Statutes/Developing The Common Law.

The judges with the passage of time have developed a number of presumptions, which assist them in providing an authoritative interpretation or construction of a particular statue. It is of paramount importance for the judges not only to declare the common law but they are also frequently called upon to settle disputes as to the meaning of words or clauses in a statute. The Judges have certain aids to interpretation.

A. Statutory Aids

Judges may get some guidance from statute laws:-

(1) The interpretation Act 1978 is a statute describes terms commonly used in acts of parliament dealing with corporation and human being.

(2) A statute contain an interpretation section, defining the terms used in a

Particular Act ss. 735-44a of the companies act 1985 defining accounts, director etc.

(3) Sometimes Judges draw the meaning of the statute from the preamble, (Sex Discrimination Act 1975, containing 87 sections/schedules)

Judges after analysing the cases make use of certain rules of interpretation in order to ascertain the meaning of parliamentary language.

B. General Rules Of Interpretation Evolved By Judges

(1) The Literal Rule.

In this approach the judges use ordinary or usual meaning trying to give the intention of parliament. In the case of Puhlhofer V Hillingdon London Borough Council [1986] AC 484 the court was required to decide the case on the meaning of the word accommodation in the housing (homeless persons) Act 1977. According to act person was not homeless if he is occupying accommodation in literal or ordinary meaning approach. Thus the House of Lords drew conclusion that person was occupying accommodation though the subject accommodation was without cooking and washing facilities.

(2) The Golden Rule

In case if the wording of the statute is ambiguous then another less usual meaning adopted in its place. In a case of Alder V George [1964] 1 all 628 (QBD) appellant had obtained access on Marham Royal Air Force station on May 11, 1963, and were found that he obstructed a member of her Majesty's Royal Air Force. The sole point here and argued by the appellant was that on the station he could not be in the vicinity of the station, where, as per section 3 of the official secret act 1920, if a person is found in the vicinity of station then it is an offence. In this case Lord Parker actually altered the wording of the statute and read the words ‘in the vicinity of' were interpreted to mean ‘in or in the vicinity of' in order to avoid the absurd result.

(3) The Mischief Rule

Under this rule the Judge will see the Act/its purpose and what mischief in the common law it was designed to prevent. It means where a statute has been passed to remedy a weakness in the law, the judge will adopt the interpretation which will correct the weakness. In a case Gardiner V Sevenoaks R.D.C (1950) 66 T.L.R, A statute was construed to suppress the mischief in the common law and advance the remedy.

(4) The Unity Approach

The academic writers have identified the emergence of a fourth approach, unitary approach to the construction of statutes. By seeing the judgement of many cases one finds three traditional approaches seem to be merging and more importance being given to the context of the statute in ascertaining its meaning. In R V Immigration Appeals Adjudicator, ex parte crew, 1982. In this case Judge used unity approach and accordingly dismiss the appeal stating that the daughter of Chinese mother was not a partial.

(5) The Purposive Approach

In this approach the purpose of the statute has to be identified and accordingly used. In a case Smith V Hughes [1960] 1 WLR 830 (QBD). Two common prostitutes, standing on a balcony or behind windows in their house, used to attract men passing in the street by tapping on the balcony rail or windowpane, to invite them into their house. This was one of the first cases where the purposive approach was adopted. The purpose of the street offences Act 1959 was to clean up streets, to enable people to walk along the streets without being molested or solicited by common prostitutes. Purposive approach is more liberal, but it demands the judges to know the purpose of each new act of parliament and be able to apply it to each new case that arises there from.

(6). Statutory Interpretation

The main point which aroused in S.3 of the Human Rights Act 1998 is the word ‘possible'.

Before the Human rights act 1998 have been passed there were some fundamental rights on which cases can only be interfered with the parliament which is same as section 3.

Lord Nicholls also considered that the legislation is interpreted to convey the purpose of section 3 which may be well-suited to push the force of the fundamental. He also said that section 3 is the main section in human rights act 1998. The significance of the section 3 is that all the past and future acts of parliament have to be made compatible with the convention rights. The section 3 is not difficult section to which we unable to resolve ambiguities in the word of the statute because we are to read from statute.

The leading judgment in the case of Ghaidan v Godin-Mendoza [2004] was given by Lord Nicholls the point he made there that the agreement of judicial which specifically states that section 3 (1) may not to requi0re to make decision from the court which need by legislative delibersation.1.

1. lord nicholls, para. 29-30; Lord steyn, para 44; Lord Rodger, para. 119; Lord Millet para 67.

In a case of Ghaidan v Godin-Mendoza [2004] the defendent Mr Juan Godin-Mendoza living with same sex partner (homosexual relationship) with Mr Hugh Wallwyn- James who was an oral residential tenancy of the basement of flat at 17 Cresswell garden, London, SW5. Before the death of Mr Hugh on 5th January 2001 he lived with defendant on same address on where Mr Mendoza is still living. After the death of Mr James the landlord of the flat

Mr Ahmed Ghaidan brought the case in the West London County Court with the claim of possession of flat.2. The County Court Judge Cowell held that after the death of Mr James Mr Mendoza is not entitle to have the tenancy of flat because he was not spouse of Mr James a member of original tenant's ‘family' Under the paragraph 3(1). Mr Mendoza appealed in court of Appeal where it was held that he is entitled to have tenancy of the flat as a statutory tenant under paragraph 2.Earlier House of Lord held that living with same sex partner may constitute a family and spouse.3. When the decision was held on behalf of Mr Mendoza the landlord Mr Ghaidan appealed to lordships House. In Paragraphs 2 and 3 of Schedule 1 to the Rent Act 1977 says that if original tenant residing in dwelling-house after the death of original tenant he/she entitle to have the dwelling-house and if a person living with original tenant as being his wife or her husband will be treat as spouse of original tenant. The paragraph 2 does not apply here that a person who is a member of a family of original tenant living with him with him 2 years before his death then after his death one of them have to be decide by agreement which one will be entitle to have dwelling-house. In the case Fitzpatrick it is decided that the homosexual couples may entitle as original tenant by succession under the para 3 if he pays rent or a market rent which is valuable price under the statutory tenancy.

In Mr Godin-Mendoza it claim that the difference in treatment of article 14 of European Convention on Human Rights read the conjunction with article 8. Which does not required the state of security of the tenant's family. Under section 3 Human Rights Act 1998 read and give effect to legislation in the way as convention rights. In Section 3 Courts intent to read para 2 where homosexual couples living together as the same way as the heterosexual couples living. Related to para 2 Mr Godin-mendoza is entitled to have statutory tenancy.

Lord Nicholls argued in the Ghaidan that even though the language is similar to gender-specific, the ‘social policy underlying the act.4 . (Namely, that the survivor of a cohabiting heterosexual couple has security if trnure5) is similar related to homosexual couples because of the ‘an equivalted relationship'6. He mainly focused on the relationship which may eligible to have entitled of statutory tenancy. He said that section 3 of Human Right Act 1998 is more powerful section in which court have to‘re-write' the legislation which was found incompatible with European Convention Human Rights. House of Lord approve to court of appeal that the section 3 interpretation in Rent Act 1977 where it is defined that a spouse of heterosexual relation is the original tenant as his or her wife or husband. In the same way as same-sex couples if they were his or her wife or husband.7.

2.Ghaidan v Godin- Mendoza [2004] UKHL 30, [2004] 2 AC 557 at para 24

3. Fitzpatrick v. Sterling Housing Association [2001] 1 AC 27.

4.lord nicholls, para 29-30; Lord steyn, para.44; Lord rodger, para. 119; Lord Millett para.67.

4. Ibid para 35

5. Ibid para 35

6. Ibid., para 17

7. Ibid, para 35

On 26 February 2003, High court gave the decision in the case of Leeds teaching Hospitals NHS trust V Mr and Mrs A and others, in which a black man whose sperm was used in error by the clinic to fertilise the embryo of a white woman, was declared as the legal father of the twins born as result. This case gives many aspects of the working of the English legal system, including parliamentary law making, statutory interpretation, the Human Rights Act, and legal theory.

A. Facts.

White couple A went to the clinic in order to have a baby through IVF treatment. The plan was that the husband would donate sperm which would be used with his wife's eggs to create an embryo in a laboratory, and the embryo would then be implanted in Mrs A. By chance at the same time Black couple B came to the hospital for the same reason. By mistake, sperm from Mr B was used with an egg from Mrs A. This meant that Mr A was not the biological father of his wife's twins. Dame Elizabeth Butler-Sloss, president of the High court family Division, said that under current law Mr B was the legal father but that the custody of the twins must remain with the white couple. According to Judge twins should remain with White couple. Twins born of mixed race by a mistake inherited distinctive culture, their biological mother and their biological father were not married and cannot marry.

B. Legislation.

Both families were within the limits of Human fertilisation and Embryology Act 1990. At common law, in relation to the twins, Mr B has the status of an unmarried father. He would not have parental responsibility by virtue of s 2(2)(b) of the children Act 1989. The main argument in this case concerned the effect of the1990 Act on the common law and on the children Act.

C. Judgement.

Dame Elizabeth used golden rule or the mischief rule to give the judgment over the fact that the whole scheme of the 1990 Act was based upon the principles of consent.

D. The Human Rights Act And The European Convention On Human Rights

Dame Elizabeth made sure that the human rights of Mr and Mrs A were engaged in this case, and in her ruling Mr B was a legal father constituted an interference with those rights. In her judgement the interference with the exercise of the rights of Mr and Mrs A under article 8 (1) is again in accordance with the law. The interference is necessary in a domestic society and pursues the legitimate aim of protecting the rights and freedoms of others, in this case the twins. It is proportionate in its aim to provide the necessary protection of the twins whose rights and welfare must predominate (Johansen V Norway (1997) 23 EHRR).

In case Regina .v. A [2001] Lord Slynn held that courts are not allowed to ask question in a rape case from a women with her previous sex relationship. This will make prosecution unable to explain the situation from which they have gone through 8. According to section 2 of Sexual Offence Act 1979 judges are not allowed to cross examination by or on behalf of defendant sexual relation with another person other than their offence until unless defendant allow itself.

Lord Steyn held that the section 3 under Human Rights Act 1998 have strong obligation in a rape case he said the language have two different meaning where there is no ambiguity. It is far difficult to resolve the meaning of absurdity or ambiguity.9. Judges have to struggle to find the convention of interpretation. Judges required assistant to understand section 3 however in the case R V A [2001] the women victim s of rape protected herself for having pervious history of her sexual relationship for having cross-examination parliament agree with her intention and statutory language. Nowadays section 3 nevertheless is applied as the interpretation to authorize the advocacy of a republic.10

8.http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010517/regina-1.htm

9.http://slr.oxfordjournals.org/cgi/content/full/29/2/130

10.R (Rushbridger) v. Attorney-General (2003) UKHL 38; (2004) 1 AC 357; (2003) 3 All ER 784.

10.http://slr.oxfordjournals.org/cgi/content/full/29/2/130#FN20

Bibliography

Books

Denis Keenan, Smith & Keenan's English Law, Eleventh edition, Pitman, 1995.

Rebecca Huxley-binns, English Legal method, 3rd edition, Blackstone press, 2001.

The law-making process sixth edition By Michael Zander published on 2004 

Judicial reasoning under the UK Human Rights Act  By Helen Fenwick, Gavin Phillipson, Roger Masterman

Human rights in the UK: an introduction to the Human Rights Act 1998

Second edition By David Hoffman published on 2006

Periodical Articles, Other Published Sources And Official Document

Jo Reddy, English Legal System v. Statutory Interpretation' (2003) 39 Student Law Review 23

http://books.google.co.uk/books?id=-vfX0wfW_E8C&pg=PA185&lpg=PA185&dq=section+3+so+far+as+it+is+possible+to+do+so&source=bl&ots=-ZGDueMesa&sig=Yb_eyelNRTyi6k0B7kJ1yYHGQB4&hl=en&ei=X23oSvyADqXbjQfJwLSzCA&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAgQ6AEwAA#v=onepage&q=&f=false

http://books.google.co.uk/books?id=heIKw0FfnNcC&pg=PA246&dq=lord+nicholls+human+rights+act+1998#v=onepage&q=lord%20nicholls&f=false

http://books.google.co.uk/books?id=7bQakM9B7TYC&pg=PA119&dq=lord+nicholls+human+rights+act+1998&ei=nX7oSuW7A5HENsHs6IwM#v=onepage&q=lord%20nicholls%20Ghaidan%20v%20Godin-%20Mendoza%20&f=false

http://books.google.co.uk/books?id=7bQakM9B7TYC&pg=PA119&dq=lord+nicholls+human+rights+act+1998&ei=nX7oSuW7A5HENsHs6IwM#v=onepage&q=lord%20nicholls%20human%20rights%20act%201998&f=false

Application Of EC Law In The UK Cases.

As per section 3 of EC Act 1972, UK Courts have to take note of the provisions of the treaty of Rome and also the decisions of the European Court. As such EC law has become supreme as compare to UK parliament. The legislation of the EU is based on the statement of broad general principles, which must be interpreted and applied by the UK Courts as appropriate. While remaining in the English legal system UK Courts adopt the purposive approach when interpreting treaties and conventions and the same approach is used while interpreting legislation produced by the UK parliament in response to initiatives from the European Union.

Case Note.

Attached as an Annex ‘A'

Annex ‘A'

Case Note - Statutory Interpretation/Impact Of Human Rights Act And ECHR.

On 26 February 2003, High court gave the decision in the case of Leeds teaching Hospitals NHS trust V Mr and Mrs A and others, in which a black man whose sperm was used in error by the clinic to fertilise the embryo of a white woman, was declared as the legal father of the twins born as result. This case gives many aspects of the working of the English legal system, including parliamentary law making, statutory interpretation, the Human Rights Act, and legal theory.

A. Facts.

White couple A went to the clinic in order to have a baby through IVF treatment. The plan was that the husband would donate sperm which would be used with his wife's eggs to create an embryo in a laboratory, and the embryo would then be implanted in Mrs A. By chance at the same time Black couple B came to the hospital for the same reason. By mistake, sperm from Mr B was used with an egg from Mrs A. This meant that Mr A was not the biological father of his wife's twins. Dame Elizabeth Butler-Sloss, president of the High court family Division, said that under current law Mr B was the legal father but that the custody of the twins must remain with the white couple. According to Judge twins should remain with White couple. Twins born of mixed race by a mistake inherited distinctive culture, their biological mother and their biological father were not married and cannot marry.

B. Legislation.

Both families were within the limits of Human fertilisation and Embryology Act 1990. At common law, in relation to the twins, Mr B has the status of an unmarried father. He would not have parental responsibility by virtue of s 2(2)(b) of the children Act 1989. The main argument in this case concerned the effect of the1990 Act on the common law and on the children Act.

C. Judgement.

Dame Elizabeth used golden rule or the mischief rule to give the judgment over the fact that the whole scheme of the 1990 Act was based upon the principles of consent.

D. The Human Rights Act And The European Convention On Human Rights

Dame Elizabeth made sure that the human rights of Mr and Mrs A were engaged in this case, and in her ruling Mr B was a legal father constituted an interference with those rights. In her judgement the interference with the exercise of the rights of Mr and Mrs A under article 8 (1) is again in accordance with the law. The interference is necessary in a domestic society and pursues the legitimate aim of protecting the rights and freedoms of others, in this case the twins. It is proportionate in its aim to provide the necessary protection of the twins whose rights and welfare must predominate (Johansen V Norway (1997) 23 EHRR).