Human Rights Act 1998 - Essay Example

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Human Rights Act 1998 The Human Rights Act 1998 has not been entrenched constitutionally. As such, judges are empowered to strike down secondary legislation, but this does not extend to primary legislation. With regard to primary legislation, courts can issue a declaration of incompatibility, whenever the rights and the primary legislation are incompatible…
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Human Rights Act 1998
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Download file to see previous pages However, the Government also declared that there was no intention to provide a basis for striking down any portion of it. Nevertheless, the judiciary has been empowered to rescind secondary legislation that does not comply with the provisions of the European Convention on Human Rights.2 Exceptions to this principle arise when the parent statute does not permit such repealing. Legislation has to be interpreted, to the extent possible, in a manner that renders it compatible with the European Convention on Human Rights. This is the purport of Section 3 of the Human Rights Act 1998. However, Section 4 of this Act states that if the court concludes that such interpretation is not possible, then a formal declaration of incompatibility can be made by the court. 3 The law does not undergo a change, nor does the litigant win a case, on account of a declaration of incompatibility. However, such declaration should result in a dialogue with the Government, which in turn could result in the law being changed appropriately. The Human Rights Act 1998 provides an expeditious procedure for revising legislation, if there is a declaration of incompatibility. This is as per the provisions of Section 10 of the Human Rights Act 1998. ...
However, they also permit the courts to undertake constitutional review, and this is akin to the powers made available to the Supreme Court of the United States of America. There are several important facts that are to be taken into consideration. 6 The first of these is that all final declarations of incompatibility either have been addressed by the Government of the UK or are in the process of being resolved. Despite delay in some instances, there is not a single instance, wherein the Government has ignored an issue or declared that it would not remedy it. This makes it politically impossible to challenge the courts in the UK. In addition, the Human Rights Act 1998 involves the latent additional legal cost of an application to the European Court of Human Rights. 7 Another important fact to be considered is that the courts consider Section 3 of the Human Rights Act 1998 to consist of an interpretive duty that is very strong and which constitutes the principal remedy for the violation of rights under this Act. This has reduced the reliance of the courts on Section 4 declarations of the Human Rights Act 1998, which constitutes the primary structural vehicle of the legislature. In addition, the courts have effectively made Parliament to comply with the rights provided by the Convention. Moreover, the courts have interpreted Section 3 of the Human Rights Act 1998 that transcends the rewriting of statutes.8 This has rendered it a unique technique for safeguarding rights under the Human Rights Act 1998. In addition, Section 3(1) of the Human Rights Act 1998, declares that to the extent possible, all legislation must be interpreted and given effect in a manner that is compatible with the rights provided by the Convention. It is important to realise that the rights provided ...Download file to see next pagesRead More
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