Effect of the Implementation of the Human Rights Act 1998 in the UK - Essay Example

Rights Table of Contents Question 3 Introduction 3 Effectiveness of ECHR 3 Protection of Rights in English Law 5 Effect of the Implementation of the Human Rights Act 1998 in the UK 6 Conclusion 8 Question 2 9 Overview of Privacy Right 9 Right to Confidence 9 Case Analysis 10 Summary 12 References 13 Question 1 Introduction Human rights belong to every individual, irrespective of their family background, gender, race, nationality or any other status quo that differentiates them from other individuals within the society. These rights are universal in nature and are applicable to every people in the world. Human rights are absolute and cannot be taken away merely due to personal preferences. It is also undividable and cannot be selected according to choice that supports honour. Human rights are retained by the government to the people, signifying that public units should admire the human rights and the government should guarantee that regulations are enacted appropriately so that other individuals also admire human rights. Human rights were first identified globally by Universal Declaration on Human Rights in the year 1948. Subsequently, it was readily accepted by the European Convention on Human Rights (ECHR). In the year 1998, the Human Rights Act was approved, making the human rights and liberty directly enforceable in the UK (Liberty 80, n.d.). Effectiveness of ECHR ECHR, which was adopted in the year 1950, came into practice three years later. It is a unique replication of values of society and fairness. It provides list of guaranteed rights such as right to life, right to be free from torture, right to freedom and security, right to fair trial, right to respect for private and family life, right to marry, right to effective remedy and right to enjoy other convention rights without discrimination among others [1] (The Law School, 2012). There are several accomplishments of ECHR that can be accounted since it was established, following which, it continues to encourage human rights and democracy across the European region. It has developed jurisprudence in human rights and has made significant influence to the sustained harmony and constancy in Europe. ECHR signifies that the right of individual petition is guaranteed where people are offered with adequate security assurance from the authority and by the influence of state. Over the years, the number of ‘High Contracting Parties’ (HCPs) has also expanded and the access to safety delivered by the provisions of ECHR has become available to almost 800 million European people [1] (The Law School, 2012). Whereas, this expansion of ECHR has been greeted in several nations, the number of legal cases was also observed at considerable rapidity. As the number of new member states in European Union increased, the continuous expansion trend of ECHR brought about many difficulties, particularly when assuring uniform and integrated human rights benefit to the member nations. This increased number of nations also resulted in an increase in the number of applications along with accumulation of legal cases. For example, in the year 2004, there were about 44,100 new applications where the total number of legal cases pending was recorded at 82,100. This number was expected to increase to 250,000 by 2010. An evaluation of the number of legal cases pending by the members states revealed that the increase in the number of applications was partly because of enlargement of ‘Council of Europe’ after 1990. Because of the increase in workload, additional suggestion for transformation in ECHR was also made. The increased percentage of excluded legal cases demonstrates lack of correspondence between the expectations of those who appeal to the court. Stating precisely, there was a lack of awareness and understanding to the actual objective of court with respect to human rights. In order to enhance the effectiveness of ECHR for protecting the human rights, protocol 14 was acknowledged and entered into force in the year 2010. It was intended to enhance the effectiveness of the court and to ensure protection of human rights. Furthermore, the protocol also aimed to guarantee the long run efficiency of the court by augmenting the filtering and processing of legal case applications [1] (The Law School, 2012). ECHR focuses on individual rights but understands that there is also a substantial requirement to strike a balance between individual and collective rights. Owing to this belief, the European member states could make reservation for the law of ECHR, signifying an announcement, which permitted the state to approve ECHR, at the same time, holding the domestic laws that do not conform to ECHR. The practice was however contradicted by experts on the grounds that increase complexities in the case ruling procedure along with the risks of conflicts between the UK and the ECHR laws. Furthermore, member states could also make derogation, which allowed limited nonconformity with the ECHR. This type of derogation is only permitted during war or crisis situations, which threatens the security of a country [1] (The Law School, 2012). Protection of Rights in English Law The doctrine of governmental dominion, which establishes the vantage point of the UK, appears to be greatest threat to civil rights. The British system had put primary reliance on the notion of self-correcting democracy, rendering to which, the safety of individual rights was impacted by the political instruments of governmental accountability and parliamentary inspection. Requiring major political decision makers to pursue and attain the support of the constituency at regular intervals, the democratic system itself functioned as a check against the abuse of power held by the governmental bodies or law enforcing bodies. This emphasis on political accountability is supplemented by two foundational pillars of the British constitution that are considered essential for the safety of individuals from arbitrary exercise of authority by the government [2] (The Law School, 2012). Over several decades, lack of legal implements on human rights was itself criticised as an inhibition on the growth of human rights regulation in the UK, particularly in England and Wales. Where there was no legislation, which covered a specific point, the adjudicators required to develop the common regulation for human rights. In the late 20th century, anxiety increased among certain politicians and constitutional attorneys that the accepted constitutional system of the UK would be particularly vulnerable for the protection of human rights, when being in adjustment with the ECHR provisions. It was quite outdated when contrasted with the newer democracies, where written constitution exemplified human rights principles and therefore, it was embedded in the legal structure. The absence of well-described human rights in the UK was also emphasised intermittently by the publicity given to circumstances where distressed UK citizens appealed the ECHR and depended on its provisions to suffice their legitimate rights [2] (The Law School, 2012). Effect of the Implementation of the Human Rights Act 1998 in the UK The Human Rights Act of 1998 has influenced the court activities in the UK. Before its implementation, no person was allowed to bring proceedings for violation of ECHR rights in the courts of the UK. The UK courts did not possess the authority to hear such cases. In reality, the UK only approved the right to individuals to request the ECHR in the year 1966. During that time, the EU member states had the opportunity of permitting their inhabitants the right of individual appeal. In the later period, with the introduction of Human Rights Act in the UK, the notion changed apparently forming the foundation of the current practices human rights provisions (Vick, 2001). Before the route of the Human Rights Act, the legal structure of the UK did not comprise a ‘Bill of Rights’, in that sense which is presently used. Nor there was an overall belief of constitutional law that forced a positive duty on the state to admire individual rights. In other words, the human rights in the UK legal system were residual in that they exist to the level that constitutional or common law guidelines have not constrained them. In the UK, it was believed that the democratic procedure, institutional authorisations and stabilities as well as the observance of loyal disagreement in legislature were the best ways of preventing governmental misuses of human rights (Vick, 2001). As often argued, the UK became a member of the EU in the year 1973 being under the strong influence of European Communities Act. This act also incorporated EU laws in the domestic regulation of the UK. Becoming a member state in the EU, the UK government, during that time developed new basis of law for the law enforcers to refer, when demonstrating their clients or making decisions in legal matters. If there was a conflict between EU regulations and the regulations followed in the national context of the UK, section 2(4) European Communities Act of 1972 made it clear that the English law must be construed and that the subject to the belief that the EU regulation shall be deemed absolute. This signifies that the EU regulation took superiority on any basis of the UK domestic regulation in case of any conflict [3] (The Law School, 2012). In the UK, the Human Rights Act is intended to provide a new basis of judicial interpretation of every legislation. It has received Royal Assent in the year 1998 and the key provisions were brought into consideration in the year 2000. The primary methods in which Human Rights Act delivers for the enforcement of the rights developed by ECHR are through imposing obligations on the UK courts to interpret domestic regulation in a way, which is compatible with the human rights. ECHR also allowed direct action against public authorities for the infringement of the ECHR rights [3] (The Law School, 2012). Conclusion Evidently, ECHR is regarded as one of the most effective instruments for the safety of human rights in the UK and the entire European region. It provides a unique capability to observe compliance with the convention. By evaluating the constitutional system of the UK, it can be concluded that the UK regulation was unable to safeguard the human rights. In this context, it can be stated that ECHR has imposed a positive influence on the legislation system of the UK by imposing the Human Rights Act in a more uniform and integrated manner. This act is arguably a development on the bill of rights and the scope is quite extensive on the deed of human rights. In conclusion, it can be stated that the strategy of protection of human rights by the Human Rights Act can be observed as the compromise between traditional British dependence on democratic responsibility and legal typical of constitutional system. In the end, the effectiveness of ECHR has taken a dominant position in the legitimate culture of the UK based on which, it can be agreed that ECHR has been Into existence to safeguard the fundamental rights of the EU citizens offering them with uniform legal protection. Question 2 Overview of Privacy Right Before considering the case of Charlotte and Sarah, it is vital to understand the level of privacy that should be protected when disclosing any information publicly. Privacy signifies the right to protect individual’s independence, self-respect and truthfulness. It is also regarded as the right to protect a person from disruptions of individual life. The right to privacy comprise the regulations for governing the assortment and management of personal information. However, at times, right of privacy come in conflict with freedom of expression and freedom of information. In the UK, privacy right is protected by ‘right to confidence’ law and by the ECHR as well [4] (The Law School, 2012). Article 8, of Human Rights Act of the ECHR, states that there must be no interference with the exercise of privacy right by any public authority, unless such activity is commenced for the benefits of national security, public safety and economic welfare of a nation. It should further be with the motive of the deterrence of illness or misconduct, for the prevention of health and morals and for the safety of rights and freedom of others that in turn determined the person’s right to privacy [4] (The Law School, 2012). Right to Confidence On the other hand, ‘right to confidence’ is identified as the right, which has traditionally protected confidential information. The UK courts have established that in several circumstances, obtaining or printing unauthorised pictures or information is regarded as breach of confidence with the presence of ‘duty of confidence’. The ‘duty of confidence’ exists, where a person comes into ownership of information that someone in his/her position should know. This ‘duty of confidence’ is infringed if the information is used without permission and to the disadvantage of the possessor. An individual can be subject to a ‘duty of confidence’ under the terms of agreement or by the type of connection between the possessor of the information and the individual in whom he/she reveals [4] (The Law School, 2012). Case Analysis With respect to case of Charlotte, it has been observed that her recently separated fiancé David revealed certain information regarding her past life. Such information clearly indicates the violation of privacy with respect to right to confidence. For example, with respect to the case of Coco v A. N. Clark (Engineers) Ltd [1969], it has been recognised that there should be three components, which must be proved in order to demonstrate violation of confidence. For instance, the information must have the requisite quality of confidence, i.e. it should contain confidential fact about the owner. Furthermore, the information should be communicated in situations introducing a ‘duty of confidence’ and finally, there should be ‘unauthorised use of information to the detriment of the party communicating it’. It is worth mentioning that detriment should be the claimant who initially shared the information, not the defendant who has shared the information without permission. In this context, it can be stated that the information revealed by David is highly confidential for Charlotte. Furthermore, such information fulfil the existence of ‘duty of confidence’ as being her former fiancé, David had the position to know about the past life of Charlotte. Ultimately, concerning the third component, it is also clear that the information was provided after separation of relationship, which makes David an unauthorised user for providing such information about Charlotte. Thus, in fulfilment of such criteria regarding ‘duty of confidence’ and the right to privacy, Charlotte might claim against the newspaper with respect to the interview of former fiancé, David. Concerning the second case, it can be stated that the photos provided in the newspaper regarding Charlotte, has caused embarrassment for Sarah, due to the involvement of her husband’s name in the report. However, such information does not clearly indicate the violation of privacy right. For instance, with respect to the case of Campbell versus Mirror Group Newspaper Limited, the court has identified that celebrities or self-publicist were eligible to have certain space for privacy, unless there is overriding information of public interest. However, such conditions did not fit with the case of Sarah. It is particularly because the case does not fit within the conformist examination of the reason of action required in order to infringe the ‘duty of confidence. As stated above, duty of confidence is infringed if such information is used without consent and to the detriment of the possessor. However, in case of Sarah, she cannot be regarded as the detriment as the information was not directly related with her confidentiality. Furthermore, infringement of ‘duty of confidence’ must have three components. Initially, such information must possess the requisite quality of confidence. Second, the information should be informed in circumstances introducing a ‘duty of confidence’ and the third is that there should be unauthorised use of information to the disadvantage of the party communicating it. In the case of Sarah, the information has no requisite quality to be regarded as confidence. In this case, the infringement of the right to privacy of Sarah can be justified because such information imposed a meagre effect on the wellness of Sarah and her husband. However, owing to the fact that David was not involved into ‘duty of confidence’ relation with Sarah, she might not claim against the newspaper with respect to the publication of photos. Summary ‘Duty of confidence’ clearly is present whenever intimate information arrives to the understanding of the other party. On infringement of such confidence, a party can claim to the court. Nevertheless, the activities for infringement of ‘duty of confidence’ have certain criteria to be matched in order to prove that private information has been misused. References Liberty 80, No Date. What Are Human Rights? Human Rights. [Online] Available at: http://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights [Accessed April 05, 2014]. [1] The Law School, 2012. Human rights and the UK. The Open University, pp. 52-88. [2] The Law School, 2012. What are Rights? The Open University, pp. 8-49. [3] The Law School, 2012. Human Rights and the UK. The Open University, pp. 52-88. [4] The Law School, 2012. Privacy Rights. The Open University, pp. 90-127. Vick, D. W., 2001. The Human Rights Act and the British Constitution. Texas International Law Journal, Vol. 37, pp. 329-372. Read More