Human Rights Act 1998 and European Convention of Human Rights - Essay Example

Name Class Unit Introduction The Human Rights Act 1998 has been a major step in United Kingdom (UK) and the political legal history (Ewing, 1999). The human Rights Act came into full force in 2000. Through incorporation of main provisions under the European Convention of Human Rights (ECHR) into the domestic law, the Act was able to change UK approach to enforce the ECHR into the UK courts. Human rights are the basic rights and freedoms which everyone is entitle to. The Human Rights Act 1998 ensures that all UK citizens are protected. The act gives more effect to the fundamental rights and freedoms in ECHR. UK was among the countries that helped in drafting the convention and was among the first to ratify it in 1951. From an international law perspective UK is expected to observe ECHR in their courts (Donald, Gordon, & Leach, 2012). This report gives the extent to which the ECHR has been incorporated into the UK law by the virtue of human Rights Act 1998 (HRA 1998). European Convention of Human Rights (ECHR) ECHR was opened for signature on 4th November 1950. The convention came into force on 3rd September 1953. The convention has set rights that all people residing in each of the council member states expect to receive. There are 16 basic rights under ECHR under the human rights act 1968. The rights are presented in separate articles under article 2; everyone has a right to life which is protected by the law (Harris, O'Boyle, Bates & Buckley, 2014). Despite this, the state has the power to carry out death penalty for those convicted of murder. Article three up is based on the right of not to be tortured. This is to ensure that one is not subjected to treatment which is inhuman and degrading. Under article 4, the citizens have a right not to be treated as slaves or being forced to any sort of labour. Article 5 is against citizens being deprived liberty apart from cases where law allows (Greer, 2006). Other rights have been added through subsequent protocols. The scope of these rights and freedoms has changed based on the interpretation of the convention and additional protocols. Not all rights in the convention and protocols carry the same weight (Harris et al., 2014). There are three types of rights and freedoms; Absolute rights This includes certain rights such as protection from torture which is contained in article three. This is an absolute right which cannot be removed or limited by the member states (Greer, 2006). Limited rights This includes rights which can be limited based on specific and finite circumstances. For example, the right to liberty which is contained in article 5 can be limited. This is through imprisonment where there is lawful process of conviction through a competent court (Greer, 2006). Qualified rights Some of the rights are based on the balance of the individual rights to other interests. This includes article 8, article 9, article 10, article 11 and protocol 1 article 1 and 2. This implies that depending on the right in question and the circumstance, a convention right may become incompatible (Greer, 2006). European Court of Human Rights (ECtHR) ECtHR acts as a regional human rights judicial body. Individuals can submit complaints to the ECtHR directly. ECtHR can only decide complaints which have been submitted by individuals and states based on violations of ECHR (Donald, Gordon & Leach, 2012). This concerns civil and political rights and the court cannot take up a case based on its own initiative. By 2014, 47 states had already ratified to the court. ECtHR has been very respectful to the UK court decisions. There have been rare cases where ECtHR have disagreed with UK courts (Vick, 2002). Each of the member states proposes three judges of which one is elected by the parliamentary assembly of the council of Europe. The judges hold office for a non-renewable term of nine years. The judges are independent irrespective of their states. Legal and administration support is provided by the registry. It is important to note that any case brought to the court against a third state or person is declared inadmissible (Simpson, 2004). Human Rights Act 1998 (1998) and incorporation of ECHR HRA is an integral part of the British constitution. The Act has major impact on many areas of UK laws and public bodies (Rathbone, 1998). There were calls for UK for have their own Bill of rights from 1970s to 1998. This was due to need for UK to have a law that would help in protecting and promoting civil liberties and human rights in the British courts (Ewing, 1999). The introduction of Bill of Rights Act was presented through a government white paper in 1997. HRA came into force on 2nd October 2000. HRA was supposed to incorporate ECHR into UK law (Donald, Gordon, & Leach, 2012). The convention on human rights and protocols are made part of UK laws by HRA in three ways: All laws in UK must be interpreted in a manner that is compatible with the convention rights and protocols. In event an act of parliament breaches convention rights, the court has the powers to declare that the legislation is incompatible with the convention rights. HRA has parliamentary sovereignty and it is up to the parliament to determine the need to amend the law. It is unlawful for the public authority to act contrary to the human rights. Anyone whose human rights are violated by the public authority can bring court proceeding against it. When interpreting human rights, the court has to take into account any decision made by ECHR based on extent where courts consider them relevant (Janis, Kay & Bradley, 2008). This does bind UK courts but gives them a chance to take into account all relevant judgements. ECHR has been used by UK in deciding fraction of their human rights cases. The reduced number is due to fact that HRA gave UK courts the power to enforce most of its right at home. The move made it possible to avoid UK human rights being exclusively made in Strasbourg. This makes UK judges to be involved in making judgement in most cases (Donald, Gordon, & Leach, 2012). UK courts have agreed and disagreed with ECHR in several cases. An example where UK courts agreed with ECtHR is the case of Abu Hamza. ECtHR rejected claim by the radical preacher that his trial was unfair by UK courts. Abu Hamza had been convicted of soliciting to murder, terrorism charges and inciting racial hatred. ECtHR endorsed the conclusions by UK court of Appeal and rejected the case. There have also been cases where ECtHR has deferred to UK courts or parliament. An example is Friend and others v UK. ECtHR agreed with the domestic court agreement and decided that it was a matter of UK parliament to decide (Donald, Gordon & Leach, 2012). ECtHR has in several cases adopted the reasoning of the UK courts. For example, Evans v UK involved domestic law which included in Vitro-fertilisation. The court agreed with the UK laws based on HRA and concluded that there was no violation of ECHR laws. Differences between UK and ECtHR have been rare in judgements. An example is the S and Marper v UK. This case showed the difference between the approach used by UK courts and the regional courts based on the privacy rights. These disagreements are not frequent. Another case where ECtHR overturned the decision made by House of Lords in UK was on Othman V UK. The court of appeal and ECtHR came in judgement in favour of Othman while the House of Lords ruled against him. The relationship between UK and ECtHR in Strasbourg has been a major issue leading to an intense public debate. This has been led by the Conservative party which proposes reforms on UK human rights (Donald, Gordon & Leach, 2012). Conclusion ECHR has been able to set rights for the Europe member states since adoption in 1950 by council of Europe members. Once all possibilities of appeal in member state are exhausted, an individual can take a complaint to ECtHR in Strasbourg. UK being one of the first countries to ratify the convention in 1951 has incorporated it in HRA. HRA came into force in October 2000. The act is composed of sections which codify the protections which are in the convention. This has made the convention rights to be enforceable in UK courts. UK individuals are capable of filing human rights cases in their domestic courts instead of traveling to Strasbourg. Despite this, there have been conflicts between UK and ECHR. The conflict which is led by the Conservative party proposes a reform on UK human rights. This implies that UK government can decide to withdraw from the court jurisdiction. This may lead to a case where it would be debatable whether UK has to withdraw from ECHR. References Donald, A., Gordon, J., & Leach, P. 2012. “The UK and the European Court of Human Rights.” Equality and Human Rights Commission: Research report, Vol.83,no.1, p. 33. Ewing, K. D. 1999. “The Human Rights Act and Parliamentary Democracy.” The Modern Law Review, Vol.62, no.1, p.79-99. Greer, S. 2006. The European Convention on Human Rights: achievements, problems and prospects. Cambridge University Press. Harris, D., O'Boyle, M., Bates, E., & Buckley, C. 2014. Law of the European convention on human rights. Oxford university press. Janis, M. W., Kay, R. S., & Bradley, A. W. 2008. European human rights law: text and materials. Oxford University Press. Rathbone, M. 1998. “Britain and the European Convention on Human Rights.” Talking Politics-London-Politics Association-, Vol.11, p. 4-6. Simpson, A. W. B. 2004. Human rights and the end of empire: Britain and the genesis of the European Convention. Oxford University Press. Vick, D. W. 2002. “Human Rights Act and the British Constitution”, The Tex. Int'l LJ, Vol.37, p. 329. Cases Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290. Hirst v UK (No. 2), No. 74025/01[GC], 6.10.2005 Evans v UK, No. 6339/05[GC], 10.4.2007 Nos. 16072/06 and 27809/08, 24.11.2009 S and Marper v UK, No. 30562/04[GC],4.12.2008 Read More