The European Convention on Human Rights - Essay Example

Task The Human Rights Act is a means of safeguarding human rights. The Human Rights Act has been seen to have an impact on the state and the citizens. The Act has affected the development of policy by the government. The Human rights act came in place to ensure accountability and transparency in the development by ensuring that public authorities do comply with the provisions of the act. The Human Rights Act contains rights taken from the European Convention on Human Rights. The Human Rights Act made a fundamental change in the protection of rights. This is seen whereby the act has enabled people who feel that their rights have been infringed upon to file such a claim in the courts or a tribunal. The act came into place in 1998 and before that a person who had his right infringed had to go all the way to the European Court of Human Rights to file such a complaint whereby a commission had to consider everyone’s petition in order to determine whether the case is admissible. Most cases failed to go through at this stage. The commission upon admission of a petition would then ascertain the facts and consider whether a friendly statement would suffice and if a friendly statement did not work, the court would come up with a report that illustrated its findings. Individual applicants could also not demand a hearing (Woodhouse, 2001). The act has placed powers on courts to defend the rights of individuals. These rights are important because they form part of our everyday lives. The United Kingdom has now been bound by case law from the European court of Human Rights rather than precedent. The act has created an obligation on the British courts to take case law from the European court of human rights into account and to interpret legislation in a way that is compatible with the convention on human rights. Initially there had been a conflict between the common law courts and the convention court. The courts have always upheld the common law principles and in doing so the courts came up with statutory interpretations (Rt Hon Lord Justice Elias, 2009). The European Convention on Human Rights is an international document and the European Courts of Human rights also applied their own principles in determining a case. This is whereby the convention courts made different interpretations from the British courts, An example of such a conflict is seen in the case of R (on the application of Marper) .vs. Chief Constable of Yorkshire [2004] 1 WLR 2196. Issue was whether the retention of DNA samples of people who had been arrested amounted to an infringement of rights under Article 8 read together with article 14 of the convention or not. The House of Lords ruled that there was no human rights infringement and the convention court held that there was an infringement of rights. The United Kingdom courts now have the power to undermine parliament. The act has influenced the process of policy formulation of the government firstly, through the process of making sure that there is compatibility with the convention rights. Secondly, through litigation whereby a particular policy may be changed or the method in which the policy is delivered could also be changed. Finally, there is the change that is made in behavior whereby the act requires that the behavior of public authorities should conform to convention rights (Department for Constitutional Affairs, 2008). The Human Rights Act provides a way of enforcing compatibility with convention rights. To begin the courts under Section 3 of the Human Rights Act provides that courts will construe legislation in a way that is compatible with the convention rights. A case that illustrates the effect which the act has had in the circumstances is that of A and others .vs. Home Secretary [2005] 2 AC 68, whereby the house of lords held that the Anti- Terrorism Act of 2001 was incompatible with article 14 of the Convention of Human Rights by requiring that foreign nationals be detained without trial and thereby it discriminated on ones nationality and even racial status. The other instance is found in the Human Rights Act under Section 4 which provides for the strong interpretations of rights and also gives the courts the power of declaring a piece of legislation to be incompatible. A case whereby the courts applied the provisions of Section 3 was in the case of R .vs. A (No.2) ([2002] 1 AC 45). The Provisions of Section 41 of the Youth, Justice and Criminal Evidence Act excluded any form of evidence that related to prior sexual behavior of the complainant. The courts held that the act was incompatible with Section 6 of the European Convention on Human Rights. The Human Rights Act provides that any act that is inconsistent with it is also inconsistent with the convention rights. The Human Rights Act under Section 19 provides that a minister who is responsible for a particular bill should give a statement to the effect that the provisions of the bill are compatible with the convention rights. The United Kingdom should not return to the pre Human Rights Act when the sole protector of rights was parliament. Initially parliament had been vested with much power including the power of the constitution was vested in the parliament. Under the principle of parliamentary sovereignty, parliament had the right to come up with any legislation or policy without any interference. This principle was expounded in Dicey’s interpretation where he stated parliamentary sovereignty to mean neither more nor less than this, mainly that parliament has under the English constitution the right to make or unmake any law whatsoever; and further that no person or body is recognized by the law of England as having the right to override or set aside the legislation of parliament. The principle of parliamentary sovereignty meant that parliament could limit the powers of the courts. The function of the court was to enforce the intentions of parliament (Rt Hon Lord Justice Elias, 2009). The Human Rights Act conferred powers upon the courts In the case of Ghaidan .vs. Godin Mendoza [2004] 2 AC 557. The court was seen to have the power to rewrite legislations by adding words into the legislations where necessary and they could also refuse to give effect to the plain language of an act if the meaning that they wish to give the act will uphold the rights stated in the act. One thing that should be considered is that the courts do not still have the power to strike down a piece of legislation. It only has powers to make legislations compatible with the convention rights. Parliament as already seen misused its powers as there were no limits given to it and it was free to do anything that it wanted thereby disregarding the citizens and the courts. The courts are a lesser evil compared to the times when parliament was the sole legislation maker. No one could deviate from a rule that had been made by parliament irrespective of whether the law was good or not as we can see with the Anti-Terrorism act before the court declared that it was incompatible. The act definitely leaves a mark on the role of the courts (Rt Hon Lord Justice Elias, 2009). The Human Rights Act has distributed power to the courts so that the courts can also oversee the functions of parliament in legislation. The act has merely come up with a means of checking and balancing the powers of the parliament as absolute power is never appropriate, as it is prone to abuses. The courts powers under the act are also limited in that they can only declare sections of a piece of legislation to be incompatible. It cannot declare the whole legislation to be incompatible and thereby the courts powers have been limited (Klug, 2003). Further, we see that the act provided another avenue for people who felt that their right had been infringed upon to get justice. The convention courts since their operation have decided upon a handful of cases. It was difficult for citizens to get their cases to be admitted at the convention courts and therefore the act has brought justice closer by empowering courts to decide upon matters of civil rights too. The major problem (Fox- Decent, 1998) that is seen in the application of the act is the right envisaged under the European Convention on Human Rights, which permits states to derogate from certain rights during emergencies. It then begs the question, why should human rights operate as a reason for review when the same right can be derogated from? The other issue that arises regarding the act is that courts in enforcing the Human Rights Act places so much emphasis on the individual rights and disregarding that of the public as a whole thereby threatening public safety. Reference List Department for Constitutional Affairs, “Review of the implementation of the Human Rights Act” (2008, PP 13-25) Available at < www.justice.gov.uk/guidance/docs/exec_summ_intro.pdf> on 25 November 2011 Fox-Decent, Evan, “Contextual Constitutionalism after the UK Human Rights Act 1998” (March 7, 2011). University of Toronto Law Journal, 2012. Available at < SSRN: http://ssrn.com/abstract=1780316> on 25 November 2011 Klug Fransesca, “Judicial Deference under the Human Rights Act.”(2003, PP 4-9) Available at < pa.oxfordjournals.org/content/52/1/113.extract > on 25 November 2011 RT Hon Lord Justice Elias, “The Rise of Stratsbourgeoisie: Judicial Activism and the ECHR.” Annual Lord Renton Lecture, (2009, PP 3-17) The European Convention On Human Rights The Human Rights Act Woodhouse Diana, “Law and Politics: More Power to Judges and to the People” (2001) Available at < pa.oxfordjournals.org/content/54/2/223.full.pdf > on 25 November 2011 Read More