English Legal System, Human Rights Act 1998 - Essay Example

ENGLISH LAW Whether the Human Rights Act 1998 has altered the powers of the judiciary as against the legislature and executive Introduction: Human rights are badly affected by the alarming spread of global terrorism threatening the Human Life and Public Property. The security to the life of individual has become a burning problem of global nations. In Europe the Human rights are well protected under the age old European Court of Human Rights which is also known as ECHR. The people of United Kingdom are also protected through this agency. But that was lot of expensive and time consuming. The UK made historic event in the State by enacting the Human Rights Act, 1998 which came into existent from 02.10.2000. The new Act delineated the boundaries of the rights on the principle of democracy. These rights are classified as 1. Right to life 2. Prohibition of torture 3. Prohibition of slavery and forced labour 4. Right to liberty and security 5. Right to a fair trial 6.No punishment without law 7. Right to respect for private and family life 8.Freedom of thought, conscience and religion 9.Freedom of expression 10. Freedom of assembly and association 12.Right to marry 13.Prohibition of discrimination 14.Restrictions on political activity of alien's 15.Prohibition of abuse of rights 16.Limitation on use of restrictions on rights. The new Act has not altered the powers of the judiciary as against the legislature and executive but brought the English law on par with the other nations in the world who recognized and give prominence to the Human rights. By bringing this act into force the English law established that the government is to protect the Human rights of the individuals and there fore brought the actions of public sector, local government and social and health care departments within the ambit of the act. From the date its inception all the statues made are subject to the scrutiny of the Act. That is to say all the Acts and Rules shall comply the provision of the New Act. The human rights enumerated in the new act are not new to any democratic country. These rights are protected either directly or indirectly through some machinery. Similarly prior to this new act the United Kingdom too protecting these rights through European Court of Human Rights, since it is a member of the Council of Europe and the laws of European Court which guarantees the Human rights are binding on United kingdom. The new act brings into its ambit all the central, and local government authorities such as National Health Service, Inland Revenue and police. And the acts of the non-government bodies ranging up to private nursing homes and Telecommunications,. The act does not spare the action of the private individuals impinging the rights more specifically protecting the children, who are subjected to torture from their parents in the process of imposing the discipline. The act maintained the perfect balance by imposing the responsibilities too on the persons to maintain the peace on the principle of one's liberty should not jeopardize the rights of the others. Powers of the court under the act: 1. Power to scrutiny the administrative actions of the public authorities. Under the Act court have been vested with the power to scrutiny the administrative actions and to restrain such authorities from misuse and improper use of their administrative powers when they are violating by acting in contravention of the Human rights enumerated under the act. With this power the court can safeguard the individuals from the inhuman treatment, discrimination, Privacy to property etc. 2. The act does not give absolute powers to the courts. As the law of land which is known as the Constitution of such nation, is supreme in all respect the Act too considered the same and maintained pride of the legislature by not giving over riding powers to the courts in this Act on the enactments made by the legislature. The act allows the public authorities to implement the law made by the Parliament in spite that it is infringing the rights. But keeping the remedy alive at the European Court of Human Rights whose decisions are binding on not only the United Kingdom but also all its members. 3. The Act gives a new power to the court such as power of 'Declaration of Incompatibility'. This power is given to courts to over come the deficiencies in the law made by the legislation that is binding on the citizens. When such law infringes the Human rights, under this power the courts declare such law as Incompatible and advise the legislature to take appropriate action either to amend the law or make alternative remedy. The Human Rights Act 1998 has not given any overriding rights to the courts on the enactments made by the legislation nor on executive functioning within the frame work of the legislation made law. When any authority acts in accordance with the law made by the legislature and such act violates the Human rights, under the new Act the court cannot either restrain or compel the authorities to do or abstain from doing such act. But the court allows the aggrieved to seek justice from European Court of Human rights whose judgment is binding on the English Law. "McLeod V UK" In this case the one couple separated from their legal wedding. In the separation agreement the wife agreed to and over the furniture of her husband. The husband has entered into her house when she was not in the house. She made a complaint with the police to necessary action. She also approached the court of law. The court held that as per the English law the entry of the separated husband into her house in here absence is not illegal but allowed her to seek justice from European court of Human rights. The above mechanism is not only the alternative mechanism to the court but it is guiding organization to the courts in interpreting the laws they play role of recommendatory, and also alternative dispute resolving agencies. The resolution of the dispute by the court is the last resort. The disputes, which could not be resolved with this mechanism are referred to the courts for resolution. The judgment of the court is final and binding on all the citizens and the states too. Role of the Alternative Dispute resolution mechanism As an alternative to the court system. Alternative Dispute Resolution Mechanism included mediation, arbitration, Ombudsman etc. This mechanism is used as dispute resolving tool. It is functioning as an alternative for the courts, but it is not conclusive remedy since the parties are not bared from approaching the court and seek justice once they approach the ADR. This mechanism will reduce the burden of the courts, which is burdened with numerous important cases, it is also economical, least time consuming, for the parties. Most of disputes can be resolved with the help of mediation. If the dispute is chronic and involving serious question of law and the parties are not satisfied with the ADR mechanism, then the court's interference is inevitable. The State has recognized the Alternative Dispute Resolution system and also encouraging the institution engaged in development of such agencies. From the clients point of view also it is easy and fast settlement system. To make this mechanism most useful and wide use awareness among the users and merchants are to be increased. The client decides which form of ADR is to be opted. If the client is not sure about he seeks assistance from the legal advisors. The clients while preferring the mode of ADR should consider the factors such as the public interest, results of the ADR in similar cases, time taken in resolving, cost, etc. courts may at times ask the parties to opt for ADR as s first remedy. ADR mechanism enables the parties to the dispute to get their dispute resolved before it is put in before the court action. Since even the agreement is reached between the parties it will be enforced only after the court passes an order of agreement. The court time is saved since the passing of agreement order is only formal do not involve trial and other major proceedings. ADR is only an alternative to the courts but it is not pre-requisition for any dispute to come before the court. The court will advise the parties and get them aware about the ADR and its simplified procedure and ask them to opt for ADR instead of court procedure. Court cannot make compulsory to the parties to go for ADR. When ADR is an alternative to courts the services of the Mediation are to linked to the court process. And uniform procedure to be adopted in conducting the cases by the ADR to maintain consistency and quality. Common code, common standard and common disciplinary code for mediators will improve the ADR mechanism. The validity and enforceability of ADR clauses: In ADR the parties come to an understanding and mutually agree to the decision taken in ADR through the mediation. The validity and enforceability of ADR clause depends on the context of the dispute. The legal objection arises for ADR clause in a contract if there is imbalance in bargaining. ADR clause in a contract does not impede the access to justice. The parties are open to seek the justice through a court. ADR agreements arising out of consensual are enforceable. ADR do not prejudice the proceedings of the court. The parties can seek justice from court and participate in ADR simultaneously. Confidentiality: In ADR confidentiality is maintained. The dispute and its caused do not come in to public they will be kept with the knowledge of the parties and the ADR agency. The English law protects the negotiations and mutual settlements reached out of ADR from disclosing in any subsequent proceedings. This is main reason that parties opt for ADR for settlement of their disputes. The consent order passed by the court has legal sanctity and implemented immediately. The features and the functioning of ADR, courts involvement and the government's view of developing the ADR system implies the major and important role being played by the Alternative Dispute Resolving Mechanism in the English legal system. It is indisputable fact that ADR is playing a vital role as an alternative to the court system. Bibliography www.nihrc.org/documents/HR/HR_Impact.doc http://www.un.org/esa/socdev/enable/comp301.htm www.ombuds.org/center/adr2003-7-hornle.html - 43k http://www.cfcj-fcjc.org/full-text/parker.htm Read More