Himan Rights Law - Coursework Example

?HUMAN RIGHTS LAW Human Rights Act 1998 Section 3 Interpretations and Its Use by the Courts Introduction Parliament has ceded so many powers to the courts over the years since the end of the Second World War. Among these powers is the Human Rights Act 1998 through which congress vested the power of interpreting laws, in ways that are in line with the rights stated in the European Convention on Human Rights (Section 3(1)), to all the tribunals and courts in the United Kingdom. Courts are not allowed to confuse Acts of Parliament.There have been debates suggesting lack of creativity in the courts regarding the use of the Section 3 of the Human Rights Act 19981. The courts have been so cautious in the use of this Act. There have been cases of discrimination in its use, and people have challenged its validity on such occasions. In this paper, I am going to showdifferent interpretations to the Human Rights Act 1998 as well as provide reasons to support my argument – that the courts have been cautious when using this Act of Parliament, and finally i will highlight some key points onthe Ghaidan vs. Godin Mendoza situation from which my arguments will be based. Human Rights Act section 3 and how it works Part 1: What is the Human Rights Act for? People in the United Kingdom have enjoyed a lot of individual freedoms and liberties which usuallyfall into conflict with so many other laws. Consequently, the European Convention on Human Rights (ECHR)2 was drafted in 1950,to integrate these liberties. However, it was not until the year 20003 that the convention rights were adopted in the United Kingdom through the Human Rights Act. In order to use the convention rights, one had to take a case to the European Courts on Human Rights in Strasbourg. This was extremely expensive to citizens and was also extremely time-consuming. The 1997 white paper “Rights Brought Home” (Wikipedia, 2011) rightly states that: It takes on average five years, to bringacase into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of ?30,000. Bringing these rights home will mean that the British people will be able to4fight for their rights in the British courts – without this undue delay and expense.5 One of the most critical functions is to ensure that, at all times, there is compatibility with the laws as stipulated by the Convention Rights. The Act gives individuals a complete description and summary of the freedoms and liberties that they are supposed to enjoy as citizens. It ensures that everyone’s rights are respected also, just as ECHR does. The Act also goes ahead do state that rights come with responsibility too. This means that there are cases and situations when these rights may need to be limited, such cases being when crime and public health need to be addressed. Apart from protecting the rights of individuals, the Human Rights Act also requires courts of law to obey the laws that Parliament passes. Courts are only allowed to interpret the laws as is, without altering them in any way whatsoever. Nevertheless, the Act allows higher courts the power to determine that a given order cannot be put into use for the sole reason that the law contravenes the rights described in the Convention. When this happens, congress is required to amend the various section of that law before it is set to use again6. Since the Human Rights Act was enacted, courts are now obliged to look at The Convention Rights at all times when deciding how cases should go. This is a tremendouslylarge shift from the way things used to be before. Convention rights were looked at only when the UK laws were not clear. Part 2: How does the HRA work? The Act requires all courts and tribunals to interpret laws and effectively put them into use in ways that are compatible to the Convention rights. Rightly so, when this is impossible, a court may revoke or, subordinate legislation or, if it is a higher court, make a declaration of incompatibility. This allows for the amendment of the law to make it in line with the rights of the Convention. Secondly, the Act makes it unlawful for a court of law or a court to enact legislation in a manner that is not in line with the Convention rights. It also allows an individual to make a lawsuit against the court or tribunal to court for prosecution. Only through an Act of Parliament can a local authority act against the provisions of the Convention. What happens when Convention rights have breached? If this happens, courts and tribunals handling such a case are required to take into account the Strasbourg case-law. This means that laws must be given a meaning that is in line with the provisions protected by the Convention. Part 3: Which are the Convention Rights? These are the ECHR rights. Most of them are included in the Human Rights Act. The rights in the ECHR are laid out in the form of Articles. There are different principles and points that need to be taken into account when viewing or interpreting the Convention rights. These are: Living Instrument – in the words of the Strasbourg Court7, the European Convention on Human Rights is a “living instrument” that needs to be put to use in light of modern conditions. In doing so, it seeks to determine whether there exist common European standards and rightly so, if a case failed under the Convention Rights in the past does not mean that it will fail under the Human Rights Act today. This is because times have changed and the way of life in many societies has also changed. Purposive and Wide Interpretation – the Strasbourg court aims and seeks to provideameaning that is reasonable and practical to the rights The rights may be “absolute”, “limited” or “qualified” – this means they were formulated differently. Some of the rights described in the Convention are the Right to Life, Freedom from torture or inhuman or degrading treatment among others. Freedom from torture or inhuman or degrading treatment is an absolute power for instance. Subordinate Legislation and Section 3 of the Human Rights Act Subordinate legislation is a law that is made under the authority of an Act of Parliament. It includes statutes and orders which often give powers to ministers to make regulations and rules with the approval of the Parliament. Courts are allowed to retract, or to do away with subordinate legislation that goes beyond the provisions stipulated for it by an Act of Parliament under which it has been made. Ghaidan v Godin-Mendoza In 2004, the House of Lords using section 3 of the Human Rights Act interpreted a 1977 Act compatibly with the right to non-discrimination. Mr. Godin-Mendoza lived with his same-sex partner for almost 30 years. His partner had a protected tenancy of the flat they lived in. After his partner had died, the landlord sought to expel Mr. Godin-Mendoza. Under the Rent Act of 1977 a person living with a protected tenant “as his or her wife or husband”8were to be treated as if they were a surviving spouse, even if unmarried, and entitled to be treated in the same way as the protected tenant. The landlord argued that as a homosexual partner Mr. Godin-Mendoza was not entitled to the same level of protection. Using section 3 of the HRA, the House of Lords9 interpreted the provisions of the Rent Act as treating homosexual and heterosexual couples equally, allowing Mr. Godin-Mendoza to stay securely in his home. Paragraphs 2 and 3 of schedule 1 to the Rent Act 197710 provide: '2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence.11’ (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. 3(1) Where paragraph 2 above does not apply, but a person who was a member of the original tenant's family was residing with him in the dwelling-house at the time of and for the period of 2 years immediately before his death then, after his death, that person or if there is more than one such person such one of them as may be decided by agreement, or in default of agreement by the county court, shall be entitled to an assured tenancy of the dwelling-house by succession.'12 Mr. Mendoza’s case succeeded because the court was able to rise to the occasion and do away with archaic, conservative laws that more often than not, are biased either on religious, political, on race, color and sex. Lord Nicholls words could not have put this better: “…the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible.13 Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is14 "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation…”15 Mr. Mendoza’s claim was that, the difference in the way in which he was treated was a violation on Article 14 of the European Convention on Human Rights and Article 8. Article 8 of the Convention Rights provides for: “...the right to respect for your private and family life, your home and your correspondence.”16 Under this Article, there is a condition in place throughwhich any interference with the rightsof an individual by the state or any other party for that matter must be judged to see if it is desirable. This, therefore, means that aperson is protected from unlawful searches and other breaches to privacy unless “necessary in a democratic society” Article 8 rights also include matters of self-determination which are: The freedom to choose your sexual identity; freedom to be homosexual or heterosexual The freedom to choose how you would like to look or how to dress. Right to private life means that information about you must be kept private and confidential. Authorities are not allowed to obtain such information, and if they do, they are obliged by law to make sure it is accurate and kept private and confidential. Right of respect for family life also includes the right of having family relationships recognized by law without discrimination. The right to respect for family life also includes the right of a person to live with his or her family and enjoy theircompany without discrimination. In addition to respect for family life, Article 8 also covers the right to enjoy living in your own home. This is the basis by which Mr. Mendoza was able to argue his case. He had the right to live in his house even though he was just a tenant.Article 14 provides for freedom from discrimination Article 14 gives the right to equal access of all the other rights17 regardless of “status”. Article 14 means that you need to be able to identify another Convention right in order to make use of the nondiscrimination protection. However, you do not need to identify an actual breach of the right to claim that you have been discriminated against with respect to your enjoyment of it. You just need to show that the subject matter of the Convention right is activated. Lord Nicholls was able to brush discriminatory legislation away through his speech to the House of Lords (House of Lords, 2004). Thus in his own words: “It goes without saying that article 14 is an important article of the Convention. Discrimination is an insidious practice. Discriminatory law undermines the rule of law because it is the antithesis of fairness. It brings the law into disrepute. It breeds resentment. It fosters an inequality of outlook which is demeaning alike to those unfairly benefited and those unfairly prejudiced.”18 Conclusion The Strasbourg case law requires anunusually high degree of flexibility and accuracy in interpretation in order to ensure justification in law by judges. Held: the courts have not been restrained in the use of Section 3 of the Human Rights Act 1998. The outcome of the Godin – Mendoza case rightly justifies this claim. 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