Human Rights Act Essay Sample

The Human Right Act 1998 is an act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000.It’s aim is to “give further effect” in UK law to the right contained in the European Convention on Human Right. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to the European Court of Human Right in Strasbourg. It also totally abolished the death penalty in UK law although this was not required by the Convention in force for the UK at that time.

In particular, the Act makes it unlawful for any public body to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other choice. It also requires UK judges to take account of decisions of the Strasbourg.

Court and to interpet legislatron,as far as possible, in a way which is compatible with the convention.However,if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it. All they can do is issue a dedaration of incompatibility. This declaration does not effect the validity of the Act of parliament, in the way, the Human Right Act seeks to maintain the principle of Parliamentary sovereignty.

The convention was drafted by the council of Europe after World War 2.Sir David Maxwell-Fyye was the chair of Council’s legal and administrative division from 1949 to 1952,and oversaw the drafting of the European Convention on Human Rights. It was designed to incorporate a traditional civil liberties approach to securing “effective political democracy”, from the strong traditions of freedom and liberty in the united kingdom. As a founding member of the council of Europe, the UK acceded to the European convention on human Rights in March 1951.

However it was not until Harold Wilson’s government in the 1960 that British citizens where alde to bring claims in the European Court of Human Rights. Over the was widely perceived that the executive misused its power and that, with movements like charter 88 (which invoked the 300th anniversary of the Glorious Revolution in 1688 and the Bill of Right 1689) a British Bill of Rights was needed to secure a human right culture at home.

The Labour party incorporated the European Convention on Human Rights into law throught the Human Rights Act 1998.The 1997 white paper “Rights Brought Home” started: It takes on average years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted and it costs an average paun 30,000.Bringing these rights home will mean that the British people will be able to argue for this rights in the British courts without this inordinate delay and cost.

The Human Rights Act places a duty on all courts and tribunals in the United Kingdom to interpet legislation so far as possible in a way compatible with the rights laid down in the European convention on Human Rights section 3(1). The limits to judicial creativity have been much debated but it is now clear that the courts cannot interpet Acts of Parliament in a way that would undermine their clear meaning. Where it is not possible to interpet an Act in compliance with the convention, a declaration of incompatibility may be issued by the court under section 4, starting how legislation appears to breach human rights.

The declaration does not invalidate the legislaration,but permits the amendment of the legislation by a special fast-track procedure under section 10 of the Act. As of August 2006,20 declarations had been made, of which 6 were overturned on appeal. The Human Rights Act applies to all public bodies with in the United Kingdom, including central government, local authorities, and bodies exercising public function. It also includes the courts.However,it does not include Parliament when it is acting in its legislative capacity.

Stronger provisions exist for the devolved Scottish administration under the Scotland act 1998,which provides that the Scottish Executive and the Scottish Parliament have no power to do anything contrary to the ECHR.Despite the fact that the Act states that it applies to public bodies the Human Rights Act has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect.

This is because section 6(1) of the Human Rights Act defines court and tribunals as public bodies meaning their judgments must comply with human rights obligations except in cases of declarations of compatibility.

Therefore judges have a duty to act in compatibility with the convention even when an action is a private one between two citizens. Even thought the Act’s interpretative instruction to interpret legislation as compatible with Convention right as so far as is possible in section 3(1) applies only to statute and not common law it has been argued that section 6 of the Act shows that the only law which should not be subject to human rights obligations is incompatible legislation. Therefore the common law could be developed in a way which in compatible with the Convention in an incremental fashion.However,the Human Rights Act cannot be used to create new courses of action in private law.

The Act provides that it is unlawful for a public authority to act in such a way as to contravene convention rights. For those purpose public authority includes any other person “whose functions are functions of a public nuture.”It also explicitly includes the courts. Convention rights includes only those rights specified in section 1 of the Act. In the interpretation of those rights the Act provides that the demostic courts “may” take into account the jurisprudence of the European Court of Human Rights.

Section 7 enables any person, with standing to raise an action against a public authority which has acted or proposes to act in such a Convention –contravening manner. A person will have standing to do so provided they would satisfy the “victim test” stipulated by Article 34 of the convention. This is a more rigorous standard than is ordinarily applied to standing in English,althought not Scottish,Judical Review.

If it is held that the public authority has violated the claimant’s convention rights, then the court is empowered to “grant such relief or remedy, or make such order within its powers as it considers just and appropriate. This can include an award of damages,althought the act provides additional restrictions on the Courts capacity to make such an award.

However, the Act also provide a defence for public authorities if their Convention violating act its in pursuance of a mandatory obligation imposed upon them by westminister primary legislation. The Act envisages that this will ordinarily be a difficult standard to meet although since it requires the courts to read such legislation. “So far as it is possible to do so in a way which is compatible with the convention rights.”

Where it is impossible to read primary legislation in a convention compliant manner, the only sanction available to the court is to make a Declaration of incompatibility in respect of it. The power to do so is restricted to the higher courts. Such a Dectaration has no direct impact upon the continuing force of the legislation but it is likely to produce public pressure upon the government to remove the incompatibility.

It also strengthens the case of a claimant armed with such a decision from the demostic courts in any subsequent appeal to Strasbourg. In order to provide swift compliance with the convention the Act allows Ministers to take remedial action to amend even offending primary legislation via subordinate legislation.

Campbell V MGN ltd (2002) EWCA civ 1373,Naomi Campbell and Sara cox both sought to assert their right to privacy under the Act. Both cases were successful for the complainant (Campbell’s on the second attempt ;cox’s attempt was not judicially decided but an out of court settlement was reached before the issue could be tested in court) and an amendment to British law to incorporate a provision for prixacy is expected to be introduced.

Venables and Thompson v News Group Newspapers (2001) 1 April ER908, the James Bulger murder case tested whether the Article 8(privacy) rights of Venables and Thomson, and the convicted murderers of Bulgers,applied when four newspapers sought to public their new identities and whereabouts, using their Article 10 rights of freedom of expression. Dame Butler-sloss granted permanent global injunction not to public the material because of the disastrous consequences such disclosure might have for the former convicts, not least the possibility of physical harm or death.

Another, A and others V Secretary of state for the Home Department (2004) UKHL 56, on 16 December 2004,the House of Lords held in that part 4 of the Antil-Terrorism.CRIME and security Act 2001,under whose powers a number of non UK nationals were detained in Belmarsh Prison, was incompatible with theHuman Rights Act. This precipitated the enactment of the Prevention of Terrorism Act 2005 to replace Part 4 of the 2001 Act.

Amesh Chauhan and Dean Hollings worth were photographed by a speed camera in 2000. As is standard practice for those caught in this way, they were sent a form by the police asking them to identity who was driving the vehicle at the time. They protested under the Human Rights Act, arguing that they could not be required to give evidence against themselves. An initial judgment, by Judge Peter Crawford at Brimingham Crawn Court, ruled in their favour but this was later reversed.

Price V Leeds City Council (2005) EWCA Civ289, an 16 March 2005 the court of Appeal upheld a High Court ruling that Leeds City Council could not infringe the right to a home of a Roma family, the Maloneys, by evicting them from public land. The court however referred the case to the House of Lords as this decision conflicted with a ruling from the European Court of Human Rights. In March 2006, the High Court in London ruled against a hospital’s bid to turn off the ventilator that kept the child, known as Baby MB, alive. The 19 month old baby has the genetic condition spinal muscular atrophy, which leads to almost total paralysis. The parents of the child fought for his right to life, despite claims from medics that the invasive ventilation would cause an intolerable ‘life’.

In conclusion, HRA is protect human rights to protecting themselves. However, the Human Rights Act help people known their rights when their doing something. That, the human rights important to country protecting with well.