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HUMAN RIGHT ACT

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Discuss whether the Human Rights succeeded in doing what it was designed to do

Prior to Human Right Act 1998, European Convention Human Rights were not directly applied by the courts and while there were infringements of the rights enshrined in the ECHR an application have to make to the Strasbourg Court when domestic avenues had been exhausted. Therefore, Human Right Act 1998 was incorporated in UK in 2000 to bring ECHR rights to the English law and to ensure that the public authorities have due regard for Human rights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The Human Right Act is the most important piece of constitutional legislation the UK has ever seen.”

However, we must also recognise that as a consequence of the incorporation of ECHR in English law, it had also led to some political tension between the Legislative and the Judiciary. Judges often being criticised that go beyond their constitutional role as a “interpreter” and hence violate the principle of parliamentary supremacy and Separation of power. This is because the ultimate purpose of HRA was designed to give judges a mandate to ensure that legislative and executive decision making is compatible with ECHR and at the same time, the HRA does not make judges into a lawmakers. The main challenge is thus for the courts to create a role which protects human rights but does not encroach on the elected parliament which will be discussed exhaustively below. Taken together, s3 and s4 provide a complete regime in dealing with legislation which is contrary to ECHR and give the courts the maximum power to uphold the convention rights. However to say that by virtue of s3 and s4, it had given excessive empowerment to the courts is over simplistic as there are limitation to the power of the courts. S3 only is deemed to be a teleological style of interpretation to construe the legislation in a harmonious way in light with ECHR, however it only allow this interpretation when it Is “possible to do so”, and that when it is not possible, the court must make a declaration of Incompatibility under S4. It shall be noted that S4 does not invalidate and affect the continuity operation of the offending legislation. Hence, it can be said that Human rights Act had drafted carefully to preserve the parliamentary supremacy and doctrine of separation of power and at the meantime uphold the convention rights. However in the case of R v A, it appears that the Judiciary had gone beyond their constitutional role when Lord Steyn used S3 and strained the meaning of S41 Youth Justice Criminal Evidence Act 1999 which designed to protect rape victim and allow certain evidence into trial so that it was compatible with Art 6 of ECHR. Isn’t his lordship had went far beyond what parliament had intended and upset the judicial balance. As per lord Hope, the right things to do in this case is to make a Declaration of incompatibility, hence this case had indeed illustrate that there is an excessive empowerment of the judiciary . However, this should be deemed as an exception as it was the case after HRA incorporated in UK, and judges appeared to be confused as to the power given to them under HRA 1998. Looking at the subsequent cases, for example in Mental Health Review Tribunal, s73 was in violation of Art 5 And 6, and court could not change the meaning of S73 of Mental Health Act using the interpretative provision of s3, and therefore make a declaration of Incompatibility. Further, in S(care Order) 2001, even though judges in Court of Appeal strain the meaning of Children Act 1989 to make its proceeding compatible with Art 6 and Art8, this decision nonetheless overturned by House of lords. According to Lord Nicholls, Court of appeal decision was so wrong as by doing so they had become a legislators rather than a interpreter which is not what parliament had intended. Therefore, for this instance, it can be... Show More

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