The Role and Purpose of the Human Rights Act 1998 - Literature review Example

Discuss the role and purpose of the Human Rights Act 1998 and identify how it might be used to protect older people Introduction The Human Rights Acts (HRA) 1998 is an Act that incorporates the large European Convention of Human Rights (ECHR). The ECHR was signed in 1950 in Rome after the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations in 1948. It is an international treaty to protect human rights and fundamental freedoms in Europe . The HRA is composed of a number of sections that have the effect of organizing into a code or systemizing the protections in the European Convention on human rights and enacting them into UK laws (Rights, 2007). This means all public bodies such as local government, police, courts, publicly funded schools, hospitals, and others bodies running or carrying out public functions have to comply with the convention rights (Kanter, 2005). The implication of this is that, any individual can pursue human rights cases in any domestic courts. That means they no longer have to visit Strasbourg so as to argue or stage their cases in the European Court of Human Rights. The Act ensures that every individual has the right to be treated with respect, fairness, dignity, equality and respect for their personal liberty and autonomy (Henry Sterner, 2008). The following are the articles as stated in the Act: The Convention Rights and Freedoms, Article 2 Right to life (Betten, 1999). It states that everyone’s right to life shall be protected by the law. In the article it is declared that no one can be deprived intentionally of his life, except in execution of a court sentence after a conviction of a crime’s penalty should be provided by the law. Article 3 is about prohibition of torture (McGoldrick, 2001). It states that no one shall be subjected to inhuman or to humiliating punishment. Article 4 is about prohibition of slavery and forced labour (McGoldrick). It stipulates three clauses and situations where this right is enacted. This includes; no one shall be held in servitude or slavery, no one shall be required to perform compulsory forced labour, and lastly, elaboration of the purpose of the term ‘Compulsory or forced labour’, which will not excludes : service or employment that forms part of the normal civic obligations, any work or duty required to do in the normal course of detention imposed as stipulated in provision of article 5 of the Act, any service of a military character, and any services rendered in case of a calamity or emergency threatening the well-being or life of a community. Article5 is about the Right to liberty and security (McGoldrick). It states that everyone has the right to liberty and security. Liberty is the personal immunity and freedom from arbitrary exercise of authority, servitude, oppression and confinement. It also gives an individual the freedom of choice. Article 6 is about the right to fair trial (McGoldrick). Everybody is permitted to a public and fair investigation in a sensible point in time by means of an impartial and independent tribunal. This article determines obligations and civil rights if one is charged in a criminal court. The article also states that a suspect remains innocent till proven otherwise and in accordance to the laws. The minimum rights of criminal offenses are also stated in this article. Article 7 states: No punishment without law (McGoldrick,). This article shows that no one will be held guilt of a criminal offense on account of an omission or any act that did not involve a criminal offense under international or national law at the particular time it was committed. It also states that no heavier punishment shall be imposed on a victim. Article 8 is about rights to respect private and family life (Betten, 1999). Everyone has the right to protect his private life, his correspondence, his home, and family life. This will not be handled contrary unless it is necessary in a democratic society and should be handled in accordance with the law. Article 9 is about Freedom of thought, conscience and religion (Betten, 1999). This right includes one changing religion, freedom of belief, publicly or privately, alone or with a group, and is allowed to practice the beliefs, religion, teachings, and worship. But this is only allowed by the law if the practices affect the public health and morals, security, public order and if it goes against the rights as well as protection to the other subjects. Article 10 is about freedom of expression (Betten). This right protects individuals from authority interferences while expressing their opinions and imparting ideas and information, but does not prevent the state from requesting the licensing of television, broadcasting or cinema enterprises. This freedom can be interposed if necessary only on matters affecting national security, democratic society, public safety, territorial integrity, preventing crime or disorder, protection of reputation, protecting the health and morality of the individual and other subjects. Article 11 is about freedom of assembly and association (McGoldrick). Everyone has the right to freely associate with other and the freedom to hold and attend peaceful assemblies, this also include the rights to join or form trade unions and benefit from its protection. It also states that the rights might be interposed only if necessary, and this may be due to national security, prevention of crime or disorder, public safety, protection of morals and health and the protection of freedom or rights of other subjects. Article 12 is about the right to marry (Betten). Men and women have a right to marry at marriageable age and to form a family in accordance to the national laws that govern the practice of this right. Article 14 speaks about prohibition of discrimination (McGoldrick, 2001). The exercise of one’s rights and freedoms as stated in the Act or Conventions shall be enacted and enjoyed without any discrimination on any ground such as race, language, sex, colour, religion, national or social origin, political opinion, relation to the state of majority, birth, belongings, and other position. Article 16 talks about restrictions on political activities of aliens (Betten, 1999) Articles 10, 11, and 14 will not protect an individual from restrictions on the political activities of aliens from the High Contracting Parties. Prohibition of abuse of rights Acts rights (Article 17) (McGoldrick, 2001) by a person, group or state cannot be interpreted as implying any rights by engaging in activities that seem or aim at contradicting any rights and freedoms stated in this Convention. The only restrictions on the rights and freedoms permitted under the Act or Convention shall be applied and, therefore, shall not be extended to any other purpose than the stated or prescribed in the document (Article 18) The First Protocol Article 1: Protection of property (McGoldrick, 2001). This is the First Protocol of the European Convention on Human Rights states that every legal or natural person is entitled to exercise and enjoy his possession, so no one will be deprived his right to own or possess property except under the conditions stated by national or international law. Article 2: Right to education (Betten, 1999). Everyone has the right to education in conformity with the parents’ philosophical and religious convictions. Article 3: Right to free election (Betten, 1999). Everyone under the national laws is entitled to free expression of the opinion of the choice of people of the legislation, through a secret ballot in the elections held by the High Contracting Parties. Other schedules in the Acts put in place to protect the Human life the High Contracting Parties. Other schedules in the Acts put in place to protect the Human life include: the Derogation and Reservation section, remedial orders, The Sixth Protocol, and the Thirteenth Protocol (Betten, 1999). Role and Purpose of the Act The Act’s main purpose is to protect human life at all cost give and provide ways to assess situations where the rights and freedoms of an individual in a society have been breached, and provide the step by step ways to deal with the issue both in the court and out of the court (Kanter, 2005). The Human Rights Act is in a way supposed to strengthen a victim’s case in court. In case one is incriminated or discriminated against, and the issue goes to court, then one can use the Act in this particular circumstance to protect oneself. The Act also requires all public authorities to ensure that everyone is treated with dignity and equality; this is also interpreted as a general duty of these authorities (Richard Gordon, 2012). The Human rights Act protects every person regardless of the age, status or colour, but this Act may only be used by persons residing in Wales and England regardless of the origin nationality, prisoner or organizations. This act gives the directions when it comes to court cases, the judge must read the document and relate effectively to legislation to make them compatible, also bring out or expose any anomaly performed by a public authority towards the subjects. As stated in the Convention, human rights are universal meaning that they protect every natural human being under the law. Therefore this right should be exercised wholly. It is indivisible. One cannot choose which right to honour. The main role of the Human Rights Acts is to provide directions in the state on whether one is right or wrong in relation to personal rights and freedom when it comes to matters of law enforcement (McCrudden, 2000). The Acts states clearly what to do and what one ought not to do, aiding the subject of the involved state to live in harmony and peace. Human Right Act Protection on Older People Older people are people considered to be over 65 years old. At this age many people many face difficulties in the following areas; social care, physical and mental health, housing , community care, employment, education and leisure, transport, income, decision-making, access to information and utilities and consumer protection (Rights, 2008). Older people are the most vulnerable to human rights, abuse, ill treatment, and the social care context, due to the fact that mostly they depend on other sources for their basic needs. A number of publication and initiatives have been created before, focused on older people in social and health care. The Human Rights Act focuses more on political and civil rights, and therefore, facing a big obstacle in tying to face issues involving older people on some factors such as poor housing, social exclusion, poverty, and in a way trying to link them to Human Rights Act (Richard Gordon, 2012). As notice before, the Human Rights Act applies largely to public authorities, nevertheless, the relevant public authorities in fields such as social exclusion, employment, skills and learning may be difficult to identify. A lot needs to be done to counter issues affecting older people in relation to their human rights. Some issues cannot be identified due to lack of information, difficulties of elderly people in making complaints and accessing justice, and misunderstanding and negative perceptions surrounding human rights in the general public (Rights, 2008). Despite all these, the act in some ways provides relevant sections that may apply to older people in relation to their protection and well-being. These include the following clauses; Article 2 talks about the right to life, this right protects older people from being exposed to life threatening situations such as being evicted from a resident home. This can also be defended by article 1 in protocol 1 in the Act (Rights, 2006). Article 3 also gives protection in terms of treatment. The article states that one cannot be subjected to torture or inhuman treatment. Old people may benefit from this in ways such as respecting their living wills as stated, if for example, the will states that he/she will not subjected to treatment of old age, then treating him/her will be violating this right (Rights, 2006). The old also benefit from article 5 of the Act that gives right to liberty and security of person, although mostly it is violated by most hospitals that use informal admissions policies, and do not provide an elderly patient with favourable procedural rights, this article may be used to turn this around in favour of the patient (Rights, 2008). Under article 6 of the Convention that states that everyone is entitle to a public and fair hearing in the determining of his obligation and civil rights in a reasonable point in time by an impartial , independent tribunal recognized with act (Jeffrey Lionel Jowell, 2003). The article does not have the power to compel a remedy or cause of action for a complaint because the internal procedures are lengthy, leading to violation of this right, although if handled without getting as far as the Ombudsman or the independent review, the law may in a way protect the elderly. Another right that affects older people is article 8 that gives one the right to respect private life, family and home. This right might seem violated in a case where an elderly patient is denied access to private information that is officially held concerning his or her health (Kanter, 2005). This right and in relations to any other rights protects the elderly against this kind of treatment. Article 9 of the Convention gives right to everyone to exercise freedom of conscience, thought and religion (Jeffrey Lionel Jowell, 2003). This article is supposed to give everyone including the elderly the right to exercise publicly their thoughts and religious beliefs, although some areas the elderly are denied use of public transport as well as being in a position where they some areas the elderly are denied use of public transport as well as being in a position where they cannot afford private transport to ferry him or her to a place of worship or where he/she can raise his/her thoughts concerning matters affecting the community (Juklestad, 2001). The elderly are also protected by article 14 that gives right to everyone’s protection from discrimination on any ground despite the age, sex, religion, and others (Fenwick, Phillipson & Master, 2007). This article protects everyone against treatment that may sound or seem to be discriminatory to one (Angela Hudson, 2009). They can file a case if they feel looked upon by any individual or organization in the society. Conclusion The UN has in many ways created bridges between the elderly and justice concerning violation of their rights (Harvey, 2005). Formation of initiatives, forums and publications, and treaties that are out to support and protect the elderly in the current environment, is one way of creating conducive environment for the elderly (Jeffrey Lionel Jowell, 2003). However, much is also being done by independent national government to give elderly person’s independence in terms of accessing adequate water, food, clothing, health care and shelter through self-help, family and community support and incomes. Although the rights allow the elderly to participate in major national building (BIHR, 2009), some other initiatives have worked hard towards making this a reality. Every right and freedom in the Acts applies also to the elderly in the society and this should never be violated under any circumstance. References British Institute of Human Rights, Matthews L., 2009. Older people and Human rights, London: Age UK. Hudson A., Matthews L., 2009. Caring for Older People in the Community.33ed.New York: John Wiley & Sons. Betten, L., 1999. The Human Rights Act 1998: What It Means: The Incorporation of the European Convention on Human rights Into the Legal Order of the United Kingdom. 1st ed. London: Martinus Nijhoff Publishers. Fenwick H.M., Phillipson G., Masterman R., 2007. Judicial Reasoning under the UK Human Rights Act. 1st ed. Oxford: Cambridge University Press. Harvey, C. J., 2005. Human Rights in the Community: Rights as Agents For Change. 5 ed. Belfast: Hart Publishing. Steiner H., Alston P., Goodman R., 2008. International Human Rights in Context: Law, Politics, Morals: Text and Materials. 3rd ed. Oxford: Oxford University Press. Jeffrey L. J., Cooper J., 2003. Delivering Rights: How are Human Rights Act is Working And for whom. 5th ed. London Hart Publishing. Juklestad, O., 2001. The Institutional Care for Older People-the Dark Side. Journal of Adult Protection, the, 3(2), pp. 32-41. Kanter, A. S., 2005. The United Nations Convention on the Rights of Persons with Disabilities and its Implications for the Rights of Elderly People under International Law. Georgia State University Law Review, 25(3),pp. 1-527. McCrudden, C., 2000. Common Law of Human rights?: Transnational Judicial Conversations on Constitutional rights. Oxford Journal Legal Studies, 20(4),pp. 499- 532. McGoldrick, D., 2001. The United Kingdom’s Human Rights Act 1998 in Theory and Practice International and Comparative Law Quarterly, 50(4),pp.901-953. Richard Gordon, Tim W., 2012. Judicial Review & the Human rights Act. 2nd ed. London Rutledge. British Institute of Human Rights, 2008. The Human Rights Act- Changing lives. 2nd ed. London: British Institute of Human Rights. Great Britain Parliament Joint Committee on Human Rights, 2007. The Meaning of public Authority under the Human Rights Act: Ninth Report of Session 2006-07, Report, Together with Formal Minutes, Minutes of Evidence and Appendices. 1st ed. London: The Stationery Office. Joint Committee on Human Rights, House of Lords, House of Commons. 2006. The Human Rights of Older People in Healthcare, London: authority of the House of Commons. United Kingdom. Human Rights Act 1998. United Nations. Universal Declaration of Human Rights. Adopted and proclaimed by General Assembly resolution 217 A (III), 10 December 1948, New York: UN. Read More