Human Rights Act Regulations - Essay Example

Answer First, the Government intended the Act to do more than provide legal remedies for violations of Convention rights. It hoped that the Act would introduce a culture of Human Rights in the public service, as the rights were 'mainstreamed' and became an intrinsic part of decision-making and planning in all parts of the public sector. Secondly, the Act provided only limited remedies for violations of Convention rights. The rights can be enforced principally against public authorities only. There has been little horizontal effect, although section 3 of the Act applies generally and has had some beneficial effects, for example in relation to discrimination in succession to tenancies. The omission of the right to an effective remedy for violations of Convention rights (Article 13 ECHR) from the list of Convention rights which the Act made part of municipal law militated against the development of innovative remedies. So did the careful preservation of the principle of the legislative sovereignty of the Queen in Parliament, making it impossible to strike down primary legislation which is held to be incompatible with a Convention right. (The remedial regime would be much enhanced if the EU Charter of Fundamental Rights becomes legally enforceable through the implementation of the EU Constitution: parliamentary legislation which is incompatible with the Charter rights would then be ineffective to the extent of the incompatibility). Under section 4 of the Human Rights Act 1998, the higher courts can make a declaration of incompatibility, but that does not affect the validity or effectiveness of the incompatible legislation. Thirdly, on the other hand, the political process has proved to be responsive to the injection of human rights standards. To give but one example, so far the Government has responded to every declaration of incompatibility by introducing amending legislation, albeit sometimes somewhat grudgingly. The Act carefully preserved parliamentary sovereignty in the sense that courts are unable to misapply or strike down legislation on the ground of an incompatibility with a Convention right under the Act. Nevertheless, two provisions affect the finality of the power of the Queen in Parliament. Section 3 requires everyone to read and give effect to legislation, so far as possible, in a manner compatible with Convention rights. This means that the ultimate interpretative principle does not now turn on the literal meaning or objective purpose of the legislative text but on the effect which will be best calculated to secure compatibility with Convention rights, subject to the constraint of the 'possibility' of a reading or effect in the light of the legislative text. There are important questions as to the point at which a reading or effectuation of legislation that is legitimate for a decision-maker in his or her institutional position in the state shades into illegitimate legislative action. However, subject to this it is clear that the literal reading of legislation, the intention of the legislature, and the mischief which the legislation was designed to address no longer offer a final answer to questions as to the meaning and application of legislation. To some extent this restricts the practical ability of Parliament to give effect to legislative purposes, at least in so far as the mode of expression leads to a result that is incompatible with Convention rights. Unlike the duty under section 3 of the Act, the power of one of the higher courts under section 4 to make a declaration of incompatibility in relation to legislation does not formally limit the capacity of the Queen in Parliament to give effect to Her legislative goals or the means by which Her Majesty can do so. However, a declaration under section 4 has some odd characteristics in the perspective of accepted constitutional principles. The Queen in Parliament has authorized judges to declare that parliamentary legislation is in some sense wrongful by reference to the objective, legal standards set by Convention rights. Admittedly such a declaration does not affect the validity or effectiveness of the legislation in question. Nevertheless, it is to say the least odd to see judges formally declaring that the Queen in Parliament has acted in some sense improperly as a matter of law. It is true that no effective legal remedy can be granted. For example, after A. v. Secretary of State for the Home Department [2005] 2 WLR 87 the suspected international terrorists had to remain in Belmarsh prison to await new legislation despite the decision that their detention violated Articles 5 and 14 of the European Convention on Human Rights; and after the declaration of incompatibility in Bellinger v. Bellinger [2003] the amending legislation (the Gender Recognition Act 2004) did nothing to validate retrospectively the marriages of the successful litigants who had established that the legal invalidity of their earlier marriages had been incompatible with their rights under Articles 8 and 12 of the Convention. However, this has the potential to undermine the protection given by the Human Rights Act 1998 to Convention rights as a matter of law. It also fails to appreciate that there may be several different sources of constitutional legitimacy, and judicial action is legitimized in accordance with principles of the rule of law by the reasoning supporting the decision, not by any democratic pedigree for the judges or their decisions. When Lord Bingham of Cornhill in A. v. Secretary of State for the Home Department [2005] 2 WLR 87 at paragraph [42] delivered what Lord Steyn, extra-judicially, has described as an 'eloquent and magisterial judicial rebuke' to the Attorney General for pushing forward the idea of deference (Lord Steyn, '2000-2005: Laying the foundations of human rights law in the United Kingdom' [2005] EHRLR 349, 350), it provided a welcome reminder that the interpretation and application of Convention rights are matters of law. They are to be determined by judges in accordance with the principles of the rule of law, not by politicians, particularly when the determination has the capacity to affect fundamental rights. When he further pointed out that the work of the judges in protecting the rule of law in this context is not anti-democratic, but instead serves to bolster the rule of law without which democracy would be impossible, Lord Bingham articulated a great constitutional truth concerning the separation of powers, and one which could not have been easily asserted without the Human Rights Act 1998. The last constitutional principle is that of distribution of powers between Westminster and the devolved legislatures and executives under the devolution settlement of 1998. The Convention rights have different effects under the devolution legislation from their impact under the Human Rights Act 1998. In the Scotland Act 1998, for example, the Convention rights operate as a limitation on the constitutional competencies of the devolved authorities. The Human Rights Act 1998 does not affect the competence of public authorities, but only limits the manner in which they can give effect to their competencies. We also know that the European Convention on Human Rights and the transformation of the Convention rights into municipal law are intended to operate as a floor, not a ceiling: authorities are free to adopt a higher standard of human rights protection than that required by the Strasbourg court as long as they do not fall below the Strasbourg standard. One would expect a similar approach to operate in respect of the relationship between levels of human rights protection offered at UK level and in the devolved jurisdictions: for instance, Scotland should be free to offer greater protection to Convention rights in relation to devolved matters under the Scotland Act 1998 than is available at UK-wide level under the Human Rights Act 1998. Nevertheless, there have been some areas where the Act has made a discernible difference to the law. It has been directly or indirectly of benefit to a number of groups whose interests are not adequately represented in the political process, such as asylum-seekers, foreign suspected international terrorists, life-sentence prisoners and those serving indeterminate sentences, prisoners subject to disciplinary proceedings, homeless people, incompetent patients, victims of violent crimes and their families who want to establish what happened to them, overseas victims of violations of Convention rights by agents of the state undertaking duties abroad, and (potentially at least, once an inconsistency between decisions of the House of Lords and the European Court of human rights is resolved: Ex: Leeds City Council v. Price [2005] 1 WLR 1825) people whose homes are subject to repossession by a landlord. Answer-2 From the scenario of this story it is clear that Paul and Richard do not have any formal contract. And there also have no matter of acceptance. So generally Richard can not claim against Paul. But on 4th April Paul offered Richard to sell him a consignment of claret at a particularly favorable price through a letter. which stated that the offer is open for a limited period only. If Richard wishes to accept it, make it sure to do so by 12th of April, using the enclosed form which is specially adapted for Paul's computer systems. This letter can be considered as General offer and strong evidence against Paul. Because Paul gave time until 12th April to accept the offer but he sold the product before the given time which is a fraudulent task. As Paul breach of his word which has written evidence, Richard can sue against Paul. Bibliography: 1. Human Rights Act-1998 available at: http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1 2. Sen, A k & Mitra. J.k., 2006, "Commercial & Industrial law", 25th edition, World press pvt. Ltd., Kolkata, India, ISBN-81-87567-31-7. Read More