The Human Rights Act 1998 and the European Convention - Essay Example

? The Extent Human Rights Act 1998 has fully implemented the European Convention on Human Rights into the UK legal system Date: The Human Rights Act of 1998 is an act of Parliament, whose main aim is to ensure that it gives further force the laws concerning human rights, contained in the European Convention. It gives the courts in the United Kingdom the power to deal with those issues, which might cause the citizens of this country to go to the European Court of Human Rights (McGoldrick 2001, 901). The act makes it illegal for all public bodies to take any actions or decisions which are in contravention to the European Convention on Human Rights. The only exception to this is Parliament, because it has the legislative capacity in the United Kingdom, and should, therefore, remain sovereign. This Act requires all the courts in the United Kingdom to take into account the decisions which have been made by the court at Strasbourg, as well as to interpret the legislation of Parliament, so that their decisions can be as far as possible in compatibility with the Convention on Human Rights. It is, however, impossible to interpret an Act of Parliament to make it compatible with the provisions of the Convention, because courts are not allowed to override such acts (Kavanagh 2006, 179). Instead, all these courts are allowed to do is to issue a declaration of incompatibility so that the validity of a Parliamentary Act is not affected. One of the reasons why this Act does not affect Parliamentary Acts is because one of its aims is to ensure that the sovereignty of Parliament is maintained in the United Kingdom, because it is the supreme legislative body (Feldman 2008, 8). However, the Act still gives individuals the option of taking their cases to the court of Strasbourg if they feel that they are not satisfied by the decisions of the local courts. The main function of the Human Rights Act is to give courts in the United Kingdom the power to deduce legislation so that it is in compatibility with the human rights as stated in the European Convention on Human Rights (Hope 1999, 185). This does not mean that the legislation is invalidated, and instead, the amendment of the legislation is permitted, at a fast pace, to ensure that they are in compatibility with the convention. The amendment does not necessarily remain permanent, and, in fact, it has been known for Courts of Appeal to overturn such court decisions. This Act has to be implemented by all the public bodies in the United Kingdom except for Parliament. The public bodies, which are directly affected by this Act, include the central government as well as the local government. The courts are given wide powers to ensure that they are able to interpret both principal and subsidiary legislation so that they are attuned with the convention. The interpretation of these powers goes far beyond the normal statutory interpretation because they include the interpretation of legislation made in the past as well as those which are to be made in future (Satvinder 2006, 29). This interpretation ensures that the Human Rights Act is protected from being repealed by implication. The interpretation has been applied by courts in three different interpretations. The first of these is known as reading in, which refers to the insertion of words into a statute if it is found that there is none which appear in it. Another of these applications is known as reading out, and this refers to words being omitted from a statute if they are found to be in contravention with the European Convention. The last of these is known as reading down which refers to an interpretation being declared to be in compliance with the convention (Gihring 2000, 203). However, if the courts find it difficult to interpret a statute so that it can be compatible to the European Convention on Human Rights, then they may issues a declaration of incompatibility, and in such cases, only higher courts have the power to make such declarations. Declarations of incompatibility are usually made when a piece of legislation is found to be in conflict with its legislative intent. These declarations do not, however, bind those parties which are involved in the proceedings and, in fact, such declarations are not able to invalidate legislation. The Human Rights Act in this case tends to achieve its aims through political rather than legal means. This is because it gives the government the power to amend such legislation without any need for legislative approval. There are times when Parliament has used parts, or sections, of the Human Rights Act to make some adjustments to legislation, so that they can be made compatible to the Convention rights. There are, however, times when it has been found necessary for entirely new pieces of legislation to be made, so that this compatibility could be ensured. It has been found that even though this Act is meant to apply only to public bodies; it is increasingly beginning to bear a significant influence on the private sector, as well. This is because courts have a responsibility to work in compatibility with the European Convention even if the case involved is a personal one involving two people. The Human Rights Act makes it illegal for any public authority to do something or behave in a way which can be considered a contravention of the European Convention Rights. The Act defines a public authority as anyone whose functions are those of a public nature but this explicitly excludes courts. The Act provides that the local courts in the United Kingdom may take into account the jurisdiction of the Human Rights Court in Strasbourg when interpreting the rights as stated by the Convention (Young 2002, 53). Furthermore, it allows any person who has reason to believe that a public authority has acted or proposes to act in a manner which is in contravention of the Convention, to take action against them. Such a person will only have the right to do so if he or she passes a test that satisfies that they are victims, as is stipulated in the Convention. If this public authority is found to have violated the person’s rights, then the courts are granted the power to give a sentence or grant compensation which they consider being just as well as appropriate. Although the Act has restrictions against it, the courts are allowed to award damages, which it considers appropriate to the victims (Varuhas 2012, 263). Public authorities can also find defence in the act, especially if they are found to be in contravention of the European Convention, when in pursuit of obligations imposed on them by Parliament. It is envisaged that the latter will be a standard which is difficult to meet, because the courts are still required to read the legislation related to the contravention in compatibility with the Convention. If the courts find it impossible to read the legislation in a manner that is compliant to the Convention, then the only option which the Act leaves them is to make a declaration of incompatibility in relation to this legislation. However, the power to make such a declaration is reserved only for the higher courts since a declaration of incompatibility tends not to have an impact on the strength and usage of the legislation involved. Instead, such declarations more often than not ensure that the public puts pressure on the government so that it can make sure that the incompatibility with the Convention is removed (Young 2000, 89). A declaration of incompatibility also strengthens the case of a person, where such a decision is made, and it helps them a great deal when appealing to the court at Strasbourg. The act allows ministers in the United Kingdom to take actions meant to remedy legislation, which are in contravention using subordinate legislation (Brammer 2003, 33). This is normally meant to ensure the swift compliance of such legislation with the Convention without necessarily going through Parliament. The Human Rights Act of 1998 altogether abolished the death penalty in the United Kingdom, in essence confirming earlier legislation on the matter. Although the death penalty had been done away with in the Murder Act of 1965, it had stayed in force when dealing with some military crimes; however, these provisions had not been put in force in the United Kingdom for many decades. This Act went further than the European convention in this matter, because, at the time, the Convention permitted the death penalty especially during times of war. In conclusion, it can be said that the Human Rights Act of 1998 has largely succeeded in implementing the European Convention on Human Rights in the legal system of the United Kingdom. It has been seen that most of the statutes that are used in the United Kingdom are now subject to this Act, unless such statutes are directly involved with the affairs of Parliament. Furthermore, this Act has helped to guarantee the human rights of the British people because it has enabled them to become more aware of them. It has encouraged them to put pressure on the government to ensure that it makes adjustments to legislation which is in contravention with the European Convention. The citizens of the United Kingdom now do not have to go all the way to Strasbourg to receive justice and instead; they can get it from the local courts. The European Convention has become so internalised in the British legal system because of the Human Rights Act, that it is now a permanent part of UK laws. References Brammer, A. (2003). "Human Rights Act 1998: Developments." The Journal of Adult Protection 5.4: 33-7.  Hope, L. (1999). "The Human Rights Act 1998: The Task of the Judges." Statute Law Review 20.3: 185-.  Feldman, D. (2008). "The Territorial Scope of the Human Rights Act 1998." The Cambridge Law Journal 67.1: 8-10. Kavanagh, A. (2006). "The Role of Parliamentary Intention in Adjudication Under the Human Rights Act 1998." Oxford Journal of Legal Studies 26.1: 179-.  McGoldrick, D. (2001). "The United Kingdom's Human Rights Act 1998 in Theory and Practice." The International and Comparative Law Quarterly 50.4: 901-.  Satvinder, S. J. (2006). "Constitutionalising Rights without a Constitution: The British Experience Under Article 6 of the Human Rights Act 1998." Statute Law Review 27.1: 29-.  Gihring, S. R. (2000). "The Human Rights Act 1998 what it Means: The Incorporation of the European Convention on the Humans Rights in the Legal Order of the United Kingdom." Chicago Journal of International Law 1.1: 203-4.. Varuhas, J.N. E. (2012). "Liability Under the Human Rights Act 1998: The Duty to Protect Life, Indirect Victims and Damages."The Cambridge Law Journal 71.2: 263-6.  Young, A. L. (2000)."Fact, Opinion, and the Human Rights Act 1998: Does English Law Need to Modify its Definition of 'Statements of Opinion' to Ensure Compliance with Article 10 of the European Convention on Human Rights?" Oxford Journal of Legal Studies 20.1: 89-.  Young, A. L. (2002) "Judicial Sovereignty and the Human Rights Act 1998." The Cambridge Law Journal 61: 53-65. Read More