The Human Rights Act 1998 and the Convention Operates under United Kingdom Law - Assignment Example

ASSIGNMENT 1 Name Institution Course Lecturer Date The Human Rights Act 1998 and the Convention operates under United Kingdom law. According to Kavanagh (2009), the adoption of Human Rights Act 1998 for UK was in accordance to European Convention on Human Rights and the UK courts avails all remedies following any breach of the Convention right. The Act contains all the public bodies to work in line with the Convention requirement and further requires the judiciary and tribunals to take the decisions, judgement, and opinions as well as interpret parliamentary Act in a manner that is compatible with the criteria set by the Convention. Where a conflict might arise between the Act of parliament and legislation set by the Convention, a declaration of incompatibility can be made by the judges or strike down a secondary legislation. Though the Convention is not meant to abolish any Act of parliament, it supersedes the domestic law when the two are in application. Krisch (2008) argues that, the drafting of Human Rights Act 1998 ensures that the basic rights and freedoms are easily protected in UK. In its application, it regulates all public authorities like central government departments, NHS Trusts and local authorities as well as other bodies like private companies that are operating in prisons. The organizations and institutions have to comply with the Act and human rights issues. As organizations provide services to the citizens or in instances where they are making decisions, they should be concerned with decisive impact upon the rights of all people. The Act does not apply to private companies or individuals. However, those private companies that offer or perform public functions are regulated by the Act. The public authority can thus stop a person or a company from abusing human rights. That extends to protection of children from degrading treatment and abuse by the parent by a public authority. Kavanagh (2009) further observes that, the Act protects and covers all people in United Kingdom irrespective of their citizenship and immigration status. Any person in UK for whichever reason is protected through the provisions in Human Rights Act. For any individual who thinks that their rights are being breached by another party, they are required to file a case in the court against the public body that breaches. The Act offers absolute rights in some instances such as the right not to torture but the government can interfere with absolute rights or limit them in some circumstances. In the case of Zenith, a company that direct works with the community, it can be regulated by authorities or be sued by another party; possibly an employee if human rights and freedoms offered in the Act are breached. 1. Areas of human rights and conduct of business operations 1. Discrimination As Bartlett (2009) observes, an employee is required by the law to be responsible in addressing and stopping discrimination. The issue should be dealt with in an effective, quick and fair way with the situations of harassment responded to. In case the company does not show its commitment by having in place a compliant mechanism, corporate awareness of discrimination, taking internal compliant seriously, acting promptly by investigating a complaint, provide complainant with healthy work environment and communicate to a complainant of its actions in responding to complaint its operations may be stopped. There are always problems to address especially those to do with sexual harassment and an employee should have a strategy to allow reporting, deal with discrimination. The tone that the senior management set may be an influencing factor to this and an employee can consider it and the consequences like losing a job. The barriers to reporting may necessitate the legal bodies to institute the company to stop its operations due to lack of better environment for all the workers. The company internal procedure should allow all workers irrespective of race, ethnic grouping, sex and colour have access to equal treatment. 2. The right of an employee to file a human rights grieve or complaint According to McGill & Tracey (2011), when in-house policy or process cannot fully solve a dispute, the employee has an option to file human rights claim as guided by the Code. The internal procedure does not stop an employee to seek the help of the Commission, courts or Tribunal if they want. The rights for collective agreement that give employees a choice to deal with a complaint should be acknowledged and any violation of collective agreement may necessitate a legal action of closure of company’s operations until the rights are fully acknowledged and allowed to work effectively. The employment related statutes that are part of collective agreement should be implemented and substantive and obligations of the company. Continued rumours, unrest and disruption in workplace may lead the necessary legal bodies to take an action against a company to allow them deal with the allegations affecting its workers. The company must show the steps it will take to address the instances of disruptions or else the senior staff be taken by a Tribunal to assess corporate or personal liability. The organization best chance to offer a resolve to a complaint is to do it early and satisfactorily. 3. Application of internal policies and procedures As Salin (2008) observes, when human rights issue arise in a company, the pre-determined internal polices and the set procedures help those involved in providing transparent and structured process to resolve the concerns in timely manner. There is a guideline set for companies to develop Human Rights Policies and procedures. The people who are in charge of developing the policies and procedures need to identify and understand discrimination. An organization that does not take concerns of information remains open to a lot of liability, flawed investigation and failure to address cited discrimination. For instance, without enough information on discrimination, a radicalized person with disability may be affected by inappropriate comment. A serious comment can be made and the person fail to object it and the management should be aware that even a single comment can be serious enough to poison the whole work environment leading to violation of Code. Though some organization can have enough expertise to resolve issues, in other cases, a third party may be needed to investigate the human rights issues and resolve the issue fully. A complex issue may however necessitate the employee to take a legal action that might end up stopping the companies operation and particularly where the issue covers a number of employees. 4. Employee signing a release without considerations As Compa (2008) points out, an employee whose rights have been violated may be required to sign a release as an agreement to set the other party free and to agree that no further claim would be taken on that person. Such contracts are acknowledged by the court where parties share understanding that there would be no further claim made. However, consideration is required where something of value is given in exchange for that right. Both parties need to carry the terms of agreement and where the three elements are missing, and then the contract is not enforceable. In instance where a fired employee signs a release in order to get the money owed under the set Employment Standard Act like vacation pay or severance payment, there should be money given as consideration for signing that release. In case such a case is raise to a court, the company might face sanctions that might jeopardize its operations. Task 2 i) Zenith business operations and criminal offences As Hughes & Ferrett (2011) observes, the law through review of Act defines which conduct is right or wrong. Criminal action covers those conducts that may involve mere doing, the failure to do or intentions that reveals probability of crime. At conduct level, most of crimes are taken to have higher degree of wrongfulness or are defective in nature. The law binds a party to do or not to do something. In the case above, Zenith will be held by the law if they do not implement or update the law enacted in the company safety policy to avoid incidences of traumatic death or injury due to breach of employer’s duty of care. Zenith degree of culpability can be higher if it is noted that they are directly involved in causing death or injury due to negligence or omission. The ground that might lead to injury, harm or death will be taken by considering the guilty intent and action. Andrew and Zenith: unaltered legislation Human Rights Act guarantee the right to fair trial for all and this is well spelled out in Article 6 of Human Rights Act 1998. In all employment cases, the legislations that are put into force by the legal institutions ought to be applied appropriately. The law does protect the company from any action from the employee that might interfere with its operations. The employees should limit themselves to their specified spheres of influence, make responsible decisions and take actions with the highest level of accountability. However, in Andrew’s case, the right for fair trial has not been followed as the prior legislation on minimum duration a director can be jailed has not been altered. Legislation comes into effect after it is enacted and enforced by the judiciary or tribunals. A fair trial would have been ensured by constraining the minimum sentence to what was in effect at the time the judgement was made. ii) Felix and police: The rights of a suspect According to Zhang (2009), the EU roadmap to procedural rights adopted in 2009 acknowledges the right of a suspect to interpretation and translation. This is meant to offer sufficient protection to accused persons and suspects. Every person has their rights even after crime and should contact a police to be informed about the investigation that is undertaken. Under Human Rights Act 1998, right to liberty is among the key principle and exercise of power of arrest has significant interference with the right. However, the use of arrest powers should be justified by law and enforcement officers by considering the necessary objectives which can be possibly met by less intrusive means. In exercising arrest powers, the test of necessity should be applied by looking at circumstances, the nature of offence and criminal justice system interests. The arresting officers need to inform the person who is arrested and for obvious facts and circumstances of arrest need to be reported to custody officer. The police have violated Felix’s rights by failure to ensure that he gets informed of the reason for arrest. In the process of investigation and questioning, the police ought to ensure that Felix has the right counsel and interpreter (Carens 2008). The police were supposed to seek for an interpreter without delay for Felix to offer the right information. Language barrier is a major factor that may lead Felix to offer distorted information that might lead to his execution. When a police arrest someone or charge someone with any criminal offense and subsequently hold the person in jail, the person should be taken to a judge within the first 24 hours or as soon as possible. During weekends, a conference call can be used to facilitate a hearing. The Human Rights Act 1998 protects the rights of all even those people in UK for any reason. The police should have ensured that Felix was not arrested if the circumstances of arrest would not warrant such arrest. Article 14(3) (c) offers all people, the right to trial without undue delay though at times the circumstances of a case like complexity, conduct of parties or in case the accused is detained may be considered. Nevertheless, Felix has a right to sue the police for delay and failure to consider the circumstances of language barrier to ensure justice (Zhang 2009). ii) Betty and James: Fair trail As Carens (2008) points out, a suspect ought to be provided with a letter of rights to inform him/her about those rights. All suspects have a right to legal advice at or before trial. In regard to this, Betty lawyer willingness to seek the witness for Betty’s case was stopped making the process of prosecution imbalanced. Betty has a right to communicate with consular authorities in order to promote and establish the relevant information that protects her rights. To protect the rights of a suspect, there are measures that are acknowledged to facilitate investigation as well as prosecution of a crime. During a trial, witnesses offer testimonials and evidence against or for the suspect which facilitate cross-examination. Generally, she is not guilty until it is so proven by a balanced decision made by the court after consideration of facts from both sides of witnesses. James has harassed the interrogation process by relying on prior knowledge of Betty’s past conduct in Zenith. The conclusion of the case that has ended up in six months imprisonment is a form of bias as witnesses are relevant for the right assessment of a suspect to have charges dropped when there is enough evidence. According to Zhang (2009), Article 14(1) guarantees a right to public hearing since it is essential for a fair trial. The hearing should have therefore been conducted orally and publicly if there was no special request by the parties involved. The court should facilitate attendance for interested public members. At times and in considerations of respective rules and procedure, the court may exclude the press and the public from all or part of a trial. For Betty’s case, the right has not been ensured rendering the conduct of the magistrate questionable. The right to fair hearing has been violated as there was no equality between the prosecution and the defence. Betty’s lawyer wish to call for witness was meant to ensure that all parties were procedurally equal positioned during the trial. All these were essential in this case for it to be concluded as fair. iii) A campaign for regional airport and residents objections Any infrastructure project should clearly link to human rights. At first glance, any project should have positive impacts on issues like the right to good health, education and roads and especially in facilitating transportation of people and goods. In this case, it is not the case as proposed airport expansion has been faced with public outcry due to resulting noise and congestion in the area. The health of the generally population will be affected and access to efficient road transport will highly be demoralized. Where the airport may serve the public good to a certain degree, it should not diminish the basic needs and particularly the needs to do with public health. The public has the right to access to information for any project that might affect it. According to Nash (2009), human rights cut across nearly all sections that are related or that affect people’s livelihood and quality of living conditions. In fact human rights are inseparable and improvement and realization of such rights is central to facilitate advancement of all without denial of rights to others or adversely affecting them. Hoffmann (2009) observed that, Universal Declaration of Human Rights significantly touches on environmental dimensions and include right to health, right to life, safe living conditions and adequate food and housing. The Stockholm Declaration focuses on human environment that has been a landmark in establishing the development of man-made aspects of environment without curtailing the basic human rights. An environment that permits well-being and life of dignity is highly considered for that matter. The environmental rights include the dimensions like protections of right to life, traditional livelihood, and associate with others in a peaceful action to protect the environment, right to participate in making decision affecting environment and administrate or redress violations of rights. The people have a voice on the manner in which the environment is used to reduce acute exposure to noise and congestion. v) Elderly welfare: Ernie and Sally and Tenderness Human rights encapsulate the rights of the elderly and are meant to ensure that the experience of these people is improved. Poor services accorded to these people may not meet their needs leading to serious deterioration of their rights. Residential care to the community acknowledges that they have the necessary competence and facilities to offer the required levels of care to the clients. Ernie has been mistreated and that amount to human rights violation as the staff in the home owes her a duty of care in exchange for the payment that is made by his former employer, Zenith. As qualified staff dealing with the elderly, care is paramount as the old age reduces Ernie’s capacity to do her duties adequately. Sally rights of expression and to raise a complaint has been denied by the home management. Considering both case for the former Zenith workers, the rights spelled out by UN Human Rights Commission are violated. As Tang & Lee (2006) observes, older people’s have a right to freedom from any form of discrimination. This may involve denial of access to services, treatment without respect due to their age as well as factors like gender or disability. Older people have a right to freedom from violence and they should not be subjected to any form of abuse like verbal, psychological, financial and sexual abuse. Their rights health and they not receive appropriate health or required social care due to their age as in the case of Tenderness. In such a circumstance, they are not supposed to receive poor and insufficient service as indicated. Apart from the specified rights, the general human rights that apply to all irrespective of age, gender and others also applies to elderly. The right of expression should not be denied as it amount to gross violation as in Sally’s case. References Bartlett, K T 2009, Making good on good intentions: The critical role of motivation in reducing implicit workplace discrimination. Virginia Law Review, 1893-1972. Carens, J. H 2008, The rights of irregular migrants. Ethics & international affairs, 22(2), 163-186. Compa, L 2008, Labor's new opening to international human rights standards. Working USA, 11(1), 99-123. Hoffmann, L 2009, The universality of human rights. Judicial Studies Board Annual Lecture, 19. Hughes, P, & Ferrett, E 2011, Introduction to health and safety at work. Elsevier. Kavanagh, A 2009, Constitutional review under the uk human rights act. Cambridge University Press. Krisch, N 2008, The open architecture of European human rights law. The Modern Law Review, 71(2), 183-216. McGill, S, & Tracey, A M 2011, Building a New Bridge over Troubled Waters: Lessons Learned from Canadian and US Arbitration of Human Rights and Discrimination Employment Claims. Cardozo J. Int'l & Comp. L., 20, 1. Nash, K 2009, Between citizenship and human rights. sociology, 43(6), 1067-1083. Salin, D 2008, The prevention of workplace bullying as a question of human resource management: Measures adopted and underlying organizational factors. Scandinavian Journal of Management, 24(3), 221-231. Tang, K L, & Lee, J J 2006, Global social justice for older people: The case for an international convention on the rights of older people. British Journal of Social Work, 36(7), 1135-1150. Zhang, J 2009, Fair Trial Rights in ICCPR. Journal of Politics and Law, 2(4), P39. Read More