The Enactment of the Human Rights Act 1998 - Assignment Example

Human Rights Act 1998 Name Class Unit Introduction The enactment of the Human rights Act 1998 (HRA 1998) was a great moment in the legal and political history of United kingdoms. This was attained through incorporation of the main provisions in European Convention on Human Rights (ECHR) into UK domestic law (Bosma, 2000). The act made it possible to shift the UK approach on the human rights from residual liberties to positive rights (Elliott & Quinn, 2009). It also became possible for those who wished to enforce ECHR in UK courts to do so through a set statutory mechanism. Despite this, the issue whether the Act had a positive impact on the UK society has been very debatable. Some people sees it as an integral part of the of the UK constitution while others still sees the need for more reforms. There has also been debate on the extent into which the HRA 1998 fully implemented ECHR into the UK legal system (Donald, Gordon & Leach, 2012). This essay analyses the extent into which HRA has fully implemented ECHR into the UK legal system. This will be achieved through a comprehensive description of ECHR, European Court of Human Rights (ECtHR). The essay will also analyse HRA 1999 and a description of this statute. Lastly, the essay shows how HRA 1999 has implemented ECHR rights into UK law. ECHR ECHR also known as the convention was adopted in Rome on 4th November 1950 by the council of Europe. The convention came into force after three years. ECHR was influenced through the Universal Declaration of Human Rights which had been proclaimed by the United Nations in 1948 (Donald, Gordon & Leach, 2012). All people in the council of Europe member states had their rights set out by the convention. The rights in the convention include; right to life, prohibition of torture or inhuman and degrading treatment or punishment and right to fair trial among others. Also the convention has been adding other rights through the use of protocols. Despite the fact that the rights have remained unchanged since 1950, the scope has been developed especially through interpretations and additional protocols (Adams, 2010). Absolute, limited and qualified rights The rights in the convention and protocols do not carry the same weight. There are three types of rights in the convention: absolute rights, limited rights and qualified rights (Donald, Gordon & Leach, 2012). Absolute rights Absolute rights are rights such as article 3 (protection from torture). These are rights that cannot be limited by the member states (Donald, Gordon & Leach, 2012). Limited rights Limited rights are rights which can be limited based on the context and circumstances. This includes article 5(right to liberty) where people can be imprisoned through a lawful detention after being convicted by a competent court (Donald, Gordon & Leach, 2012). Qualified rights Qualified rights are rights which require balancing between individual rights and other interests. This includes article 8(respect for private and family life), article 10 (freedom of expression) and article 11 (freedom of assembly and association) (Donald, Gordon & Leach, 2012). The European court of human rights (ECtHR) The ECtHR was established by the section 2 of the convention. The court is based in Strasbourg and oversees the implementation of the convention by member states. The court allows the individuals to bring complaints of their rights violations after all appeal possibilities have been utilised in their member states. If a member state refuses to comply with the ECtHR judgement, it becomes a complex issue involving both legal and political context (Bosma, 2000). HRA 1998 HRA 1998 came into force in October 2000. It is composed of the sections from ECHR that have the effect of codifying protection in to the UK laws. This made it possible for the convention rights to be enforceable under the UK laws (Adams, 2010). The outcome was the ability of the citizens to file human rights cases in the UK domestic courts instead of travelling to Strasbourg (Elliott & Quinn, 2009). Based on the UK ministry of justice, HRA works in three ways. First, it requires that all legislations must be interpreted and effect should be given as far as possible to be compatible with the ECHR rights. Only the parliament has the ability to make changes to primary legislation. Second, it is unlawful for any public authority to act contrary incompatibly with the ECHR (Donald, Gordon & Leach, 2012). If an authority does so, it allows a case to be brought to the UK court. A person who wants to take UK to ECtHR must bring their case first to the domestic courts. Lastly, UK courts and tribunals must take account of the convention rights in all cases that are brought to them. This implies that the UK courts must develop a common law which is compatible with the convention rights. Rather than coming up with new laws, HRA incorporated the rights in the Convention into UK laws. The act did not give the rights and freedom which had not been given before. What the act did was to enforce the convention rights based on UK context. The act made the convention rights to be based on the British way of life (Bosma, 2000). Impact of statute on domestic laws The incorporation of the convention into UK laws through the HRA has had a lot of impacts on domestic laws. UK citizens have been able to enjoy the human rights based on their context. There have also been several cases of contradiction (Bosma, 2000). The use of statutes has in some cases strengthened the domestic laws. Some of the cases through the ECtHR have set landmark judgement which has led to reforms in UK. Ann example is the protection of rights for lesbians, gay, bisexual and transgender people. In the case of Dudgeon v UK in 1981, it led to decriminalisation of the adult homosexual acts in private. Despite the laws decriminalising homosexuals happening in other areas of UK, Northern Ireland was still criminalising homosexuality. The case acted as the basis for decriminalising the consensual homosexual activity in Cyprus and Ireland. The statutes thus have brought a lot of reforms in the UK domestic laws. When interpreting human rights, UK courts are expected to observe the decisions made by ECtHR (Adams, 2010). Those who have been accused under HRA in UK have the right to appeal into ECtHR after exploiting all appeals provisions in UK (Elliot & Quinn, 2009). An example of this can be seen in cases of deportation of individuals who are at risk of torture in home country. There have been judgements of ECtHR against UK where it has been proved that prohibition against torture prevents deporting a person to home country where they may face torture. This is even in instances where that person is a threat to UK national security. Soering v UK involved extradition of the applicant to United States. ECtHR found that the applicant death penalty was in line with Article three but found that the state had a responsibility to ensure that the applicant was not extradited if they believed that by doing so, he would subjected to torture in home country. Another conflict between HRA and ECtHR was in the case of Chahal v UK where applicant claimed that his deportation to India would violate his rights under article 3. The ECtHR upheld a controversial judgement since the applicant was a threat to UK. There are also cases where UK has been forced to cancel deportation of individuals whose evidence has been obtained through torture. This was seen in the case of Othman (Abu Qatada) v UK. In intellectual rights cases, Douglas and Another v Hello ltd (2001, CA), ECtHR directed English law to respect the right of privacy (Davis, 2008). The impact has also been in employment laws where UK domestic laws are in compliant with ECHR. This includes ensuring that employees’ rights are not violated in any way (Gwyneth, 2008). This case involved a balance of right to privacy and freedom of information. These cases have led to situations where judgements by the domestic laws have been revoked by ECtHR. There have been claims by the conservative party (CP) that HRA has undermined the UK domestic laws in deliberating on the human rights. There have also been arguments that the act undermines the sovereignty of the parliament. This has led t proposal for amendments which includes stopping UK courts from taking into account judgement from the ECtHR and clarification of the conventional rights. There have also been pushes to limit the human right laws in the most serious cases such as criminal laws. The conflict has led to call by CP to withdraw from the convention (Conservatives, 2014). Conflict between the convention and domestic laws is a major obstacle. Conclusion The ECHR has been able to give freedoms and rights to council of Europe member states. This is through outlining the rights and freedoms for the citizens in the member states. In the convention, not all rights carry the same weight. There are absolute, limited and qualified rights. The convention led to the establishment of the European court of human rights (ECtHR). ECtHR has made it possible for the implementation of the convention in the member states. UK helped in drafting the convention and had adopted it into their HRA 1998. Under the HRA, sections of the convention are incorporated into UK laws. This has made the convention rights to be enforceable in UK legal system. The impact has made it possible for citizens to file their human right cases in domestic courts rather than travelling to Strasbourg. All rights in the convention have been adopted into the UK domestic laws. This has a lot of impact on UK domestic laws. This is through reforms in the domestic laws and enabling the citizens to access justice at home. Despite this, the statutes have led to conflict between convention and ECtHR. This is through revoking of decisions made by domestic laws through ECtHR. There have also been proposals by the conservative party in amending HRA. This is through claims that it undermines the domestic laws on human rights and parliament sovereignty. Despite HRA adopting the convention into UK legal system, conflict is a major obstacle. References Adams, A. 2010, Law for Business Students (6th Edition), Pearson Education Limited. Bosma, H. 2000. Freedom of Expression in England and Under the ECHR: In Search of a Common Ground: a Foundation for the Application of the Human Rights Act 1998 in English Law (Vol. 6). Intersentia Uitgevers NV. Conservatives, 2014, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws. Viewed 30th November 2015 from, https://www.conservatives.com/~/media/Files/Downloadable%20Files/HUMAN_RIGHT S.pdf Davis, 2008, Intellectual Property Law, (3rd Edition), Oxford University Press. 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. Elliot, C. & Quinn, F. 2009, English Legal System: Essential Cases and Materials, Longman. Elliott, C. & Quinn, F. 2009, The English Legal System, (9th Edition), Longman. Gwyneth P., 2008, Cases and Materials on Employment Law (8th Edition), Longman. Cases Dudgeon v UK, Para. 60 No. 14038/88, 7.7.1989. No. 22414/93 [GC], 15.11.1996 No. 8139/09, 17.1.2012. . Read More