Human Rights Law in the UK - Essay Example

? Human Rights Law of the Law of the Concerned 26 December Since the past few decades, the concept of human rights has come to the forefront of the political and public attention. Human rights, primarily speaking stand to be the inalienable rights of an individual or a group, to which one has the prerogative of being affiliated to, by the dint of being a human being. Human rights tend to be universal in their scope and ramifications.1 Human rights also stand to be egalitarian in the sense that they are accessible to everyone irrespective of one’s nationality, socio-economic status, race, colour, gender, etc.2 However, after every thing is said and done, there is no denying the fact that in a practical context, the enforcement and protection of human rights tends to be a really controversial topic, subject to ample legal complications and diverse interpretations. Human rights tend to be a very modern concept that primarily evolved after the World War II, in the aftermath of the gargantuan genocides and atrocities marking the Holocaust, leading to the adoption of The Universal Declaration of Human Rights by the United Nations at Paris in the year 1948. Hence the development of the European notion of human rights is a very recent phenomenon, unfolding after the secularization of Judeo-Christian ethics, which is still being extended legal and political legitimacy through relevant legal and statutory instruments. In that context, the English human rights law has evolved from the potent traditions pertaining to liberty and freedom existing in the English law and conventions as well as the apt developments taking place in a pan-European scenario.3 The UK law pertaining to human rights owes much to the European Convention of Human Rights. In that context one ought to mention the Article 5 of the European Convention on Human Rights that primarily deal with the right to liberty and security of a person.4 On the one side the Article 5 recognizes the inalienable rights of a person to liberty and security and on the other side it does qualify the special situations where the liberty and security of any individual may be compromised or constrained. The first part of the Article 5 tends to enumerate all the circumstances in which the physical liberty of a person gets curtailed. The primary objective that these classifications tend to achieve is to assure that under no circumstances a person is deprived of one’s liberty in a manner that is arbitrary.5 The quintessential spirit of Article 5 of the European Convention on Human Rights is to safeguard the individuals from such actions of the state that may be deemed to be unlawful and unexplainable. Yet, in the same breath, Article 5 tends to acknowledge that the scope of liberty could not be extended to the limits of absolute.6 Thus, in the remaining part, Article 5 attempts to enumerate the conditions and circumstances that justify the lawful restraints on the liberty of a person. Yet, each of the exceptions mentioned in Article 5 are subject to accruing legitimacy on the existence of reviews by the independent bodies of opinion. Hence, it is in totality, when one observes these twin ramifications of Article 5 that one could not help acknowledging the possibility of violations arising from faulty or intentional interpretations and applications of Article 5. The Human Rights Act 1998 of the United Kingdom was a direct initiation of the spirit for human dignity and liberty ushered in by the European Convention for Human Rights at a local level.7 The Human Rights Act 1998 came into application and force in the year 2000. The very purpose of this Act was to infiltrate in to the British Law, the rights upheld and supported by the European Convention on Human Rights. This Act lay to rest the requirement for approaching the European Court of Human Rights located at Strasbourg, by extending a remedy for the violation of Convention Rights, within the United Kingdom law. This Act makes it unlawful for a public body in the United Kingdom to act in a manner that is unexplainable, arbitrary and contrary to the provisions enshrined in the European Convention for Human Rights. The Human Rights Act 1998 also puts an onus on the UK courts and judges to deal with the cases pertaining to human rights in the light of the decisions taken by the European Court of Human Rights, to interpret the local and international legislations pertaining to human rights, in a manner and spirit that is in tandem and consonance with the essence of the European Convention for Human Rights.8 Yet, there is no denying the fact that still the laws pertaining to human rights in the United Kingdom are subject and vulnerable to the constraints and requirements of the local legislations. For instance, if in the UK a court is not in a position of or is unable to interpret an Act in the light of the European Convention for Human Rights, it is simply not allowed to override that Act. The power of the courts is limited in that context. The minimal that the judges and the courts are allowed to do in such a scenario is to come forth with a declaration of incompatibility. It goes without saying that such a declaration of incompatibility no way tends to dilute, alter or challenge the validity of any act legislated by the Parliament. To put it simply, the Human Rights Act 1998 is subservient to the notion of Parliamentary Sovereignty in the UK, directly institutionalized in the Constitution of the United Kingdom. So still, in the matters pertaining to human rights, the last resort before the British citizens or the persons subject to British jurisdiction is to approach the International Court for Human Rights at Strasbourg. In that context, it will be really interesting to mull over a few legislations that in a way tend to dilute the arrangements put in place by the Human Rights Act 1998. The Anti Terrorism, Crime and Security Act 2001 was introduced into the British Parliament in the aftermath of the 9/11 mayhem in the United States.9 A great body of legal luminaries is of the view that most of the provisions set in by this Act have nothing to do with terrorism and many aspects of this Act were in total contradiction to the spirit of the European Convention on Human Rights.10 The Part 4 of the Anti Terrorism, Crime and Security Act 2001 is especially replete with such provisions as they directly violate the sentiments inherent in the European Convention of Human Rights and extend arbitrary and unexplainable powers to the state.11 For instance, Part 4 of the Anti Terrorism, Crime and Security Act 2001 allows the state to withhold the liberty of any non-British citizen on the suspensions of one being engaged in acts of terrorism, pending deportation, even if such a deportation is totally arbitrary and unexplainable.12 The good thing is that many British courts ruled against the provisions put in place by the Anti Terrorism, Crime and Security Act 2001. Especially A and Others v Secretary of State for the Home Department (2004)13, brought to fore the exploitation of the provisions of the Anti Terrorism, Crime and Security Act 2001, under which 16 foreign nationals were withheld arbitrarily between 2001 and 2003 in Belmarsh, using the powers brought into existence by this Act of Parliament. The very provisions of this Act were arbitrary in the sense that they discriminated between the British and non-British citizens. Luckily, the House of Lords extended a majority ruling in this case, declaring the detention of non-British citizens under this Act to be unexplainable and unlawful. The Bench also ruled that the Section 23 of the ATCSA 2001 was contrary in spirit and intention to the European Convention on Human Rights and thereby filed a declaration of incompatibility. It goes without saying that the law makers had to take cognizance of this declaration and replaced the Part 4 of the Anti Terrorism, Crime and Security Act 2001 with the Prevention of Terrorism Act 2005. One way in which the Prevention of Terrorism Act 2005 scores over the ATCSA 2001 is that it is applicable to both the British and non-British citizens. Besides, the Prevention of Terrorism Act 2005 tends to be more in sync with the local and international conventions pertaining to human rights. Besides this Act attempted to classify a list of restrictions which qualified the detention of a subject suspected of being engaged in acts of terrorism. There is no denying the fact the concept of human rights points towards a vision that annuls the exploitation and withholding of the liberty and security of a person on arbitrary and unexplainable grounds. However, the laws pertaining to such vision, especially in a British context are open to the limitations and constraints set in by the evolutionary process that is inevitable and unavoidable in such socio-legal movements. References A and Others v Secretary of State for the Home Department [2004] UKHL 56 Drzemczewski, Andrew Z, European Human Rights Convention in Domestic Law (Clarendon Press 1983). Foster, Steven, The Judiciary: Civil Liberties and Human Rights (Edinburgh University Press 2006) Hoffman, David & Rowe, John, Human Rights in the UK (Longman 2009). Kent, Kevin Dooley, ‘Basic Rights and Anti-Terrorism Legislation: Can Britain’s Criminal Justice (Terrorism and Conspiracy) Act 1998 be Reconciled with its Human Rights Act, Vanderbilt Journal of Transnational Law 33. Poulter, Sebastian, Ethnicity, Law and Human Rights (Clarendon Press 1998). Provost, Rene, International Human Rights and Humanitarian Law (Cambridge University Press 2002). Walker, Clive, ‘Keeping Control of Terrorists without Losing Control of Constitutionalism’ (2007), Stanford Law Review, 59. Read More