If it is not possible for senior judges to "read down" other legislation in this way, then all that the courts can do is to say so.
The other important provision says that a UK court deciding a human rights case "must take into account" any relevant decision of the human rights court. It is for parliament to decide whether to change the law.
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Special fast-track procedures are available. That is because it was thought that ministers would want to reform an incompatible law before the claimant could go to Strasbourg and defeat the government. Many judges have expressed many opinions. Clearly, the statute does not make decisions of the human rights court binding on our own judges. But neither are they free to ignore Strasbourg decisions. Otherwise, a disappointed claimant would simply take a case to the human rights court and, again, the government would probably be defeated.
Some people think that judges in Britain are too willing to go along with a court that is constantly reinterpreting and developing the convention as a "living instrument". But rewording the phrase "take into account" might not help a judge decide whether or not to follow a particular Strasbourg decision.
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It depends whether parliament puts anything in its place. If there is no replacement, then we are back to where we were before October People would be able to enforce their human rights, but they would have to go to Strasbourg to do so. That is the theory, anyway. In practice, I think that UK judges who have spent their judicial careers enforcing human rights would find ways of continuing to do so, perhaps by ruling that convention rights such as privacy have now become part of the common law.
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If it contains rights that are based closely on the convention, as currently interpreted by the human rights court, then we would be in the same position as we now are. But the more convention rights that are missing from the new act, the more cases would go to the Strasbourg and the more defeats the UK government could expect to suffer.
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Article 46 of the human rights convention says that the states "undertake to abide by the final judgment of the court in any case to which they are parties". That means their governments must seek a change in the law. Enforcement is the responsibility of the Council of Europe's committee of ministers.
That is made up of the member states, which operate through their ambassadors in Strasbourg. Ever since the human rights court confirmed in that the UK's blanket ban on voting by convicted prisoners was a breach of their human rights, the committee has monitored the UK's non-compliance with that ruling.
In March, the committee again urged the government to introduce legislation. There has been a tacit understanding for some years that the committee would not make much of a fuss before the next general election. If the next government fails to take action, the UK could, in theory, be forced out of the Council of Europe.
But the UK has always implemented the court's decisions and nobody wants to provoke a crisis. Article 58 of the convention allows a member state to "denounce" the treaty — which means to pull out of it.
Six months' notice is required and denunciation does not release a country from its existing obligations. But it would be difficult to enforce those obligations once a state had left. There can be little doubt that UK would have to leave the Council of Europe if it pulls out of the convention. Although there is much more to the Council of Europe than human rights, no country can join the member body without first agreeing to be bound by the human rights convention.
The two bodies are separate, though often confused and are becoming more closely connected. No country can join the EU without first joining the Council of Europe. People have talked about renegotiating the UK's membership.
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But it seems unlikely that the Council of Europe would give special privileges to one particular state. The Table of Sections Affected identifies sections of the Code affected by ordinances that have become effective since release of the latest semiannual supplement. The online version of the Code and Table of Sections Affected will be updated from time to time after new ordinances become effective.
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