Letter: Human rights paper

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The Independent Online
Sir: Donald MacIntyre is right to suggest that the forthcoming White Paper on incorporating the European Convention on Human Rights into UK law raises constitutional questions ("Can we trust the judges to make our laws?", 19 September). We, as human rights NGOs and institutes, feel the courts must be provided with adequate remedies for breaches of the convention. We consider that there are three minimum requirements of incorporation.

First, courts must be able to interpret existing law in line with the convention and to "read in" convention rights. If this is not possible, the usual role of the implied repeal of an existing statute by a later statute must apply and the rights in the convention must be given preference over the old law. Should Parliament then take a different view from the courts on the appropriate balance between conflicting rights, or between individual rights and the "common good", it could of course amend the law, if necessary, re-establishing it as it was before.

Second, it is likely that government proposals will not allow statutes passed after the convention has been incorporated to be overturned by the courts. In this case, judges must first be required to interpret all Acts in line with the convention to the extent that they can do so. Where this proves impossible, the courts must have the power to make a declaration to that effect - that primary legislation is, in their view, in breach of the convention. Together with new and effective scrutiny mechanisms in Whitehall and Parliament this should ensure that new legislation is subject to thorough human rights review.

Third, following such judicial declarations, a mechanism must be found to give priority to amending the offending legislation. If the Government fails to act, or disagrees with the court's ruling, the case can of course be taken to the Strasbourg court for judgment, and there will have to be consideration of the appropriate compensation or other remedies if a violation is found.

Finally, under any model of incorporation the establishment of a Human Rights Commission is crucial.

Francesca Klug, Human Rights Incorporation Project

Nik Nicol, the Public Law Project

Anne Owers, Justice

Andrew Puddephatt, Charter 88

Sarah Spencer, the Institute for Public Policy Research

John Wadham, Liberty

London SE1

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