Human Rights Act 1998 - Essay Example

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In 1998,Parliament enacted the Human Rights Act,which had expressly given effect to Convention rights.Previously, Convention rights had only indirect application in the UK, but domestic courts are not obliged to abide by them…
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Download file to see previous pages In 1998,Parliament enacted the Human Rights Act,which had expressly given effect to Convention rights. Previously, Convention rights under the European Convention on Human Rights and Fundamental Freedoms had only indirect application in the UK, when courts voluntarily refer them in their decisions, but domestic courts are not obliged to abide by them. This is because the UK is only bound by the Convention under international law, but not domestically. With the passage of the HRA 1998 however, Convention rights have been domesticated and become part of English law to which courts are obligated to legally defer to in their decisions. Despite the negative reviews that some quarters gave the law, particularly right-leaning groups who think that it impeded the efforts to go after terrorists and politicians who perceived it as fostering the politicisation of the judiciary, the HRA 1998 has a considerable impact on certain aspects of the English legal system. This is particularly true with respect to statutory interpretation and the law on privacy rights. The law has expressly given the judiciary the prerogative to subject legislations to scrutiny to determine if they are consistent with Convention rights, which seems a dilution of the parliamentary sovereignty doctrine. In addition, the HRA 1988 has helped in the development of the common law right to privacy, which was once declared to be absent from the English legal system....
aw, a state can bring an action against another on behalf of its citizen, but a citizen can also bring an action against his own government in the ECHR Court located in Strasbourg. This right was acknowledged by the UK in 1966 (Miles et al 438). Nonetheless, it would take a lot of procedural snags for a UK citizen to hurdle before being allowed to pursue an action at the Strasbourg Court. For one, a UK citizen must exhaust all remedies available to him under domestic laws before a case can be pursued at the ECHR Court. Moreover, an ECHR Court decision favourable to him is not really binding domestically because of sovereignty issues. As a matter of fact the ECHR has limited application domestically and only in the following conditions: to aid the interpretation of domestic laws in cases they are not clear; to guide the judiciary in the exercise of its judicial discretion, and; to establish the extent of common law (Miles et al 438). All of the aforementioned conditions were established in the cases of R v Secretary State for the Home Department, ex parte Brind [1991] AC 696, Attorney General v Guardian Newspaper Ltd [1987] 1 WLR 1248 and Derbyshire County Council v Times Newspapers Ltd [1992] QB 770. In R v Secretary, a group of journalists challenged the Home Secretary’s directive prohibiting the publication of speeches of terrorists. The Court held that the Convention is not part of UK law and can be resorted only when a domestic legislation is ambiguous. On the other hand, in Attorney General v Guardian, which was about the publication of the memoirs of a retired secret service employee, the Court held that the judiciary could look to the ECHR for guidance in the use of its discretionary duty to decide on matters such as duty of confidence. Finally, in the ...Download file to see next pagesRead More
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