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ECHR rights incorporated in UK law

Assignment Brief

Question 1

  • Describe how ECHR rights are incorporated into UK law, and identify the aims of the relevant legislation.
  • Describe the preliminary ruling procedure in the Court of Justice of the European Union, and explain the legal effects of preliminary rulings.

(30 marks)

Question 2

Audrey recently inherited a substantial sum of money and decided to invest some of this money in a holiday home by the beach. The house is old and the decor is not to Audrey`s taste, so she uses the remainder of her inheritance to carry out some renovations. Audrey employs Darren, a plumber, to fit a new bathroom upstairs in the house.

Whilst fitting the new bathroom Darren causes extensive damage to the house. The very expensive wallpaper by the stairs is scratched, a wooden floor in the hallway is badly scraped when Darren drags the bathtub across it, and a flood in the bathroom causes significant damage to the newly installed kitchen which is directly below the bathroom. It is quite clear that the damage, which amounts to £14,000, has been caused by Darren`s lack of care and skill, but he is not willing to compensate Audrey. Audrey decides to take legal action to recover £14,000 from Darren.

Back in the city, Audrey is feeling quite sad about the damage that has been caused to her holiday home, the upcoming court case, and the fact that she has spent all of her inheritance. The weekend arrives and Audrey would like to have a few drinks and forget about her problems, but she only has £20 in her bank account until she is paid next week and needs to spend this on groceries. On her way home from the supermarket Audrey passes an exclusive wine merchant. She decides to go in and, unaware that she is being watched by the shop assistant, discreetly slips a bottle of red wine from the `under £30` selection in to her bag of groceries. The shop assistant calls the police. Audrey is arrested and charged with theft.

  • Provide a plan setting out how you will address the problem-style question in part b.
  • Explain which courts will hear the cases arising from Audrey`s action against Darren, and Audrey`s shoplifting. Briefly outline the procedure likely to be followed in each court, including stating which party has to prove the case, what the standard of proof is, and who the decision maker(s) will be.

(50 marks)

Question 3

  • a.Reflect on the process you used to prepare your answer to Question 2, and explain three of the steps in that process.
  • b.Explain which two steps in the process of preparing your answer to Question 2 – these may, but need not, have been identified in part a – you found most difficult, and how you plan to approach those steps next time you write an answer to a problem-style question.

(20 marks)

Learning outcomes

TMA 02 tests the following learning outcomes:

Knowledge and understanding

  • Describe how ECHR rights are incorporated into UK law
  • Describe and explain the legal effects of preliminary rulings in the Court of Justice of the European Union.
  • Identify the court of first instance, and outline the procedures, for a civil and criminal case.

Skills

  • access, and make notes on, information from a range of sources including written, audio-visual and Information and Communication Technologies (ICT)  
  • write using a clear and logical sequence of sentences and paragraphs appropriate for the level of study, subject and audience
  • reflect on your own learning

Sample Answer

How ECHR Rights Are Incorporated into UK Law & Aims of Relevant Legislation

Incorporation of ECHR Rights
ECHR rights were incorporated into UK law primarily by the Human Rights Act 1998 (HRA). Here’s how:

  1. Section 1

    • Schedules the European Convention on Human Rights (ECHR) rights into UK domestic law.

  2. Section 2

    • UK courts must “take into account” Strasbourg (ECtHR) case law when interpreting ECHR rights, promoting coherence with European jurisprudence.

  3. Section 3

    • Courts must interpret all legislation, where possible, in a way that is compatible with ECHR rights (“interpretation obligation”).

  4. Section 4

    • Where legislation is incompatible, senior courts may issue a “declaration of incompatibility”, signalling Parliament to reconsider the law (though Parliament remains sovereign and may choose not to amend).

  5. Section 6

    • It is unlawful for public bodies to act in ways that are incompatible with Convention rights.

  6. Section 7

    • Individuals can bring civil claims in UK courts alleging that public bodies have breached their Convention rights.

Aims of the HRA & ECHR Incorporation

  • Accessibility: Allow citizens to enforce rights within the UK courts without needing to go to Strasbourg.

  • Convention Compatibility: Ensure laws and public authority actions respect fundamental rights.

  • Parliamentary Sovereignty & Dialogue: Parliament retains law-making power but receives signals (via declarations of incompatibility) where laws breach rights.

  • Promoting Human Rights Culture: Encourage public authorities to consider rights issues in policy and practice, embedding a rights-based approach across UK public life.

The CJEU’s Preliminary Ruling Procedure & Its Legal Effects

Preliminary Ruling Process

  • Reference: National courts refer EU law questions to the Court of Justice of the European Union (CJEU) for binding interpretation (under Article 267 TFEU).

  • When: Triggered when a court must apply EU law but its meaning or validity is unclear.

  • Who Must Refer: Courts of last instance (e.g., Court of Appeal, Supreme Court) are obliged to refer; lower courts may but are not required to refer.

Procedure:

  1. National court formulates the question.

  2. Question is submitted to the CJEU.

  3. Interested parties (including the European Commission) may provide observations.

  4. CJEU delivers a legal ruling on interpretation or validity.

Legal Effects of Preliminary Rulings

  1. Binding on National Court: The referring court must apply the CJEU`s interpretation to resolve the dispute.

  2. Horizontal Effect: National courts often apply the ruling in other similar cases to ensure consistency.

  3. Clarifies EU Law: The ruling becomes an authoritative statement of EU law for all member states.

  4. Retrospective Effect: It`s binding on the referring court for all similar matters, even those already decided.

  5. Ensures Uniformity: Maintains a consistent application of EU law throughout member states and prevents divergent legal interpretations.

Continued...

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