Free Law Dissertations - In The First Instance, The Death Penalty Statute Would Breach The Human
In the first instance, the death penalty statute would breach the Human Rights Act 1998, and of course, the ECHR. This would constitute a breach of s 4(2) of the 1998 Act which prohibits the passing of legislation that is incompatible with the Convention. Therefore, in order for the UK to pass a successful death penalty statute, the Human Rights Act 1998 would require to be repealed. In the second instance, this repeal would in itself constitute a failure to adhere to the required conditions for EU Membership.
2.Comparison with the US Model explaining the need to repeal UK Human Rights Provisions
Comparison with the United States is crucial at this point as this country has both a Bill of Rights and the death penalty. The clear difference lies in the express prohibition of the death penalty within the ECHR provisions as opposed to the absence of any such undertaking in the US Bill of Rights. It is for this reason that outright repeal of the UK Human Rights provisions is wholly necessary. This is in stark contrast to a mere reinterpretation of the Constitution, as was the case for the Supreme Court in the 1976 moratorium that declared the death penalty to be a matter of individual State jurisdiction after four years of suspension. While this may seem to represent a disadvantage to any pro capital punishment lobbyists, it must be realised that the UK Human Rights provisions do not merit the status of Constitutional provisions, as they do in other States such as the USA and Germany. The result is that, in strict practical terms, the Human Rights statute can be overturned by simply legislating to the effect via the conventional means that Westminster uses to pass regular laws.
3.The Legal Consequences for Britain as an EU Member State
If Britain were to carry on despite the clear breaches of EU law, murder cases would be taken all the way to the European Court of Human Rights and promptly overturned on account of the incompatibility with the ECHR. Britain would be fined for the breach and given a deadline by the Court to remove the death penalty from its new Criminal Justice Act. Further to this, abolition of the death penalty is a fundamental prerequisite to EU membership. In simple terms, Britain would have to renounce membership of the EU in order to uphold a new statute on the death penalty.
4.Contrasting with the legal effects for international law treaties
The UN’s Universal Declaration of Human Rights does not expressly stipulate a prohibition on the death penalty but the stated safeguard of the right to life and the right not to be subjected to cruel, inhuman or degrading treatment or punishment is easily interpreted as a provision that is anti capital punishment. Indeed, this is the stance taken by Amnesty International.
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