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 1980s.it 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.
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRightAct 1998, European Convention HumanRights 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,HumanRightAct 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 Humanrights. Undeniable, it has a substantial impact in UK as according to Jack straw “these are new rights for new millennium. The HumanRightAct 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...
...Convention on HumanRights (ECHR) through the HumanRightsAct 1998 had no influence on English Law, as the concept of rights has always been part of English Law’ it is necessary to examine English Law prior to the incorporation and then examine both the European Convention on HumanRights (ECHR) and then its incorporation by HumanRightsAct 1998 (the Act). First, though, it is necessary to examine the meaning and concept of humanrights.
In examining humanrights, it is necessary to focus upon legal rights as opposed to moral rights. Legal rights are artificial, created by governments; they are particular in that they apply to those in a particular society living under a particular system; thus they are not universal; and they are alienable, in that they can be given up or modified. It is important to note that ‘rights’ are not the same as ‘needs’ or ‘desire.’ (Heather Montgomery, 2012, pp9-10,14,15). As Scruton declared ‘rights are not secured by declaring them.’ He further added that rights can be defined as freedoms. (Scruton, R. 2004 pp 18-19). Historically, humanrights are complex especially where they tend to be unwritten and in the...
...University of London
Common Law Reasoning and Institutions
“The HumanRightsAct has revolutionised the way in which judges interpret statutes.”
The statute is a piece of legislature that is set out by Parliament to legislate the laws of United Kingdom to be used by the courts in legal proceedings. Though written by the Parliament, the duty to interpret and apply the statutes fall on the courts, more specifically the judges to enact the statute and interpret it to suit the proceedings. Thus in other words, the duty to interpret statutes fall within the responsibilities of the judge. To help with the interpretation of statutes, the Parliament has passed the Interpretation Act 1978, but it is of not much use as it only provides standard definitions of common provisions and not notes for interpretation. Thus, the judges have took up the responsibility to create rules of interpretation, which are not really rules but are different approach to interpret statutes which are created by Parliament. For example, the literal rule is used to interpret a statute to its literal meaning which is stated. Then we have the golden rule, which is used to interpret the statute, if meaning is construed through the literal meaning, to alter the meaning to not be absurd, as the will of Parliament. The third rule is the mischief rule, as laid down in...
...compensation discrimination under the EPA applies only to jobs within an establishment.
Equal Pay Act
In 1963, President Kennedy signed the Equal Pay Act into law, making it unlawful to discriminate against a worker on the basis of sex. Since that time, the wage gap between men and women in the United States has narrowed by just 15 cents, now being 74 cents, as reported by the U. S. Census Bureau (The Equal Pay Act, New York).
Pay equality is most prevalent for the 16 to 24 age group, in which women earn more than 90 percent of what men do; however, the gap becomes 75 percent in the 25 to 54 year old group – those at the height of their careers and life responsibilities. A number of factors have contributed to the gap between men’s and women’s wages. These include: occupational segregation of women into low paying jobs; lower levels of unionization for women and attitudinal barriers that have kept women from achieving equality in the workplace and undervaluation for women’s work (The Equal Pay Act. New York). The Equal Pay Act (part of the Fair Labor Standards Act), forbids employers to compensate women differently for jobs that are “substantially equal”, that is, almost identical. Traditionally, women have worked in different occupations than men; these occupations tend to be substantially different, pay less and confer less authority (The Equal Pay Act....
...1. “The HumanRightsAct has revolutionised the way in which judges interpret statutes.”
1. From the statement, what do you understand? Critically give your own definition/ view on the statement
2. Briefly explain history of HRA and SI.
3. In your own view, what are the connections between HRA and SI
1. How HRA influence Judge interpret statutes
a. tools- SI
b. Consequences - Judges make law
2. The effect of SI
a. s3 HRA
i. How it influence parliamentary supremacy
ii. How SI violated SOP.
3. Where is the validity of HRA
a. s4 (declaration of incompability)
b. Parliamentary supremacy
4. According to validity of HRA, where is humanrights, why citizen will seek ECtHR help instead of UK Court(HRA 1998).
5. Current policy (Updates)
a. Current rights( How expandable of rights given by HRA 1998)
2. own view
The question statement suggests that the HumanRights has fundamentally changed the way judges interpret statutes. Though it admittedly has...
...replacing the HumanRightsAct 1998 with a British Bill
of Rights and Responsibilities.
The HumanRightsAct 1998 (HRA 1998) is the single most effective piece of legislation, passed in the United Kingdom, which enforced the principles set out in European Convention on HumanRights in British domestic courts. A brief history as to the enactment of such a profound piece of legislation will help us understand the importance of the HumanRightsAct 1998, and reasons the current coalition government would consider replacing the HumanRightsAct 1998 with a British Bill of Rights and Responsibilities.
After World War 2, and the barbaric atrocities of the Nazi holocaust, European politicians and jurist were convinced that there was a need to forge a new Europe. The foundation of the Council of Europe was inspired by the need to guard against dictatorship, avoid risk of another war and to provide a beacon of hope. The first task was to establish rights for individuals against sovereign states. The code of the European Convention of HumanRights (ECHR) was formed, and the European Court on HumanRights (ECtHR) was established and located in Strasbourg.
This treaty was signed by member...
...The incorporation of The European Convention of HumanRights (ECHR) into the domestic law under The HumanRightsAct 1998 (HRA) as a first step towards a better protection of rights, Finally, the ultimate question, whether to incorporate or not? The judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty. It concerns over the matter in which ‘incorporation’ will affect the conventional balance power between the judges and the Parliament.
Professor Dicey stated that the Rule of Law(1) required judicial protection of Humanrights and he placed a responsibility on the administration of the country to ensure arbitrariness and inequality was not procured during the governing process. Whether or not UK could submit to this Rule of Law depends on whether judges have been able to protect rights when they faced government’s arbitrariness.
In the absence of a written constitution, the protection of HumanRights had been given little emphasis. The doctrine of Parliamentary Supremacy compels judges to construe and comply with Acts of Parliament when interpreting statutes and there is no rule of construction that requires judges to imply the sanctity of HumanRights into...
...HumanRightsAct 1998 has impacted on the judicial understanding of precedent
Humanrights are inalienable rights in which people are conferred with by birth. The state being the guardian of such rights have an absolute obligation to protect the humanrights. Prior to the HumanRightsAct 1998, a Uk citizen who had a grievance of a violation of a humanright, had to complain to the Euoropean Court of Humanrights in order to obtain redress. Comparatively, it can be said that by the enactment of the HumanRightsAct, the rights which were protected under the European Convention of Humanrights(ECHR) were brought home, thus better protecting the humanrights within the sphere of the United Kingdom.
The HumanRightsAct 1998 (the Act) came into full force on 2 October 2000. The aim of the Act is to ensure that a set of basic humanrights, which are listed in the Act, are fully respected and enforced in the UK. Once the HRA became law UK citizens had, for the first time, rights instead of liberties. The...