Declaration vs Implementation: the importance of the ECHR and the Human Rights Act.

21 09 2012

Whilst on the surface it may appear that all laws are created equal there is a great difference in the real effects of law due in part to the separation between the executive, the legislature and the judiciary. These three bodies interact in the application of law. The legislative write the law, the executive (the police) implement it and then the judiciary interpret it.

In a simple example: the introduction of a tax is a legislative function; collecting tax is an executive and administrative function; settling tax disputes is a judicial function, as is judicial review of executive decisions. What this can mean is a strong difference in the the implementation of law (the reality of law) and the declaration of law (the technicality of law).
For example, marijuana might be declaratively illegal (technically, it is illegal to possess/sell/transport and so on). However in reality, the law is not applied this way. Police amnesty and refusal to pursue criminals mean that for the common citizen, possession is unlikely to be punished.

So how does this reflect on Human Rights? The Universal Declaration of Human Rights made bold statements regarding the rights that humans are inherently due and that the committee founded to investigate the issue believed world governments should strive to provide, however in reality the impact of such a declaration is limited by the implementation of that declaration.

The European Convention on Human Rights (ECHR) established a legal body (the self-same court) with powers to enforce human rights transgressions with the weight of international law. The Human Rights Act went further by granting UK courts the power to deal with infractions of the ECHR within the UK legal system. It is these acts which are so very important in legislation. They are, in effect, the difference between talking the talk and walking the walk.

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