Human Rights Act 1998 has impacted on the judicial understanding of precedent Human rights 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 human rights. Prior to the Human Rights Act 1998, a Uk citizen who had a grievance of a violation of a human right, had to complain to the Euoropean Court of Human rights in order to obtain redress. Comparatively, it can be said that by the enactment of the Human Rights Act, the rights which were protected under the European Convention of Human rights(ECHR) were brought home, thus better protecting the human rights within the sphere of the United Kingdom. The Human Rights Act 1998 (the Act) came into full force on 2 October 2000. The aim of the Act is to ensure that a set of basic human rights, 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 Act fundamentally changes the way the UK system of justice works, and makes public authorities more accountable for their decisions. The effect of the Act is to put human rights at the centre of the UK legal system, for the first time. Under the Human Rights Act, everyone is entitled to expect that the government, and all public agencies and organisations should have respect for their basic human rights. If they consider that their rights have been ignored, they can bring a case in the UK courts to challenge an action or a decision by any public authority on the grounds that it interferes with their rights – for example their right to express their views freely, or their right to privacy, or their right to a fair trial in court. The rights that are brought into effect by the Human Rights Act are the rights laid down in an international treaty, the European Convention on Human Rights (the Convention), which was signed by the UK in 1951. That treaty permits individuals who believe that their human rights have been violated to bring a case before an international court in Strasbourg, the European Court of Human Rights. Taking a case to Strasbourg is a time-consuming and expensive process for the UK citizens. For example, it means that someone who believed that they had not been given a fair trial would have to appeal their case all the way through the UK courts, without being able to have their human rights arguments properly addressed, and then go to the Court in Strasbourg, which might take a considerable time to reach a final decision in the case. Coming back to the topic, Human Rights Act 1998 has impacted on the judicial understanding of precedent, and the underlying features of the doctrine has changed specially from abolishing the death penalty in UK. The Act (section 21(5)) completely abolished the death penalty in the United Kingdom, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences. The purpose of the HRA is to allow the courts to apply human rights principles where they were once barred from doing so. It was not enacted so that the courts could have the final say in areas where there is no settled human rights answer any more than it allows them to abdicate from their responsibility to scrutinise on the grounds that it is outside their sphere of competence.
Unlike most Bills of Rights and constitutional documents around the world, the HRA does not give the courts any power to strike down legislation and this is one the main criticism to the HRA. Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament.
The role of the Judiciary, as an arm of the state was enhanced widely, by the incorporation of the HRA in regard of the role of interpretation of the judges. In the case of Ghaidan v Ghaidan-Mendoza Concerned the Rent Act...
...University of London
Common Law Reasoning and Institutions
Essay Title: ‘Although the HumanRightsAct1998 has impacted on the judicialunderstanding of precedent, the underlying features of the doctrine remain unchanged.’
Student Number: 090485789
Candidate Number: 54206
The HumanRightsAct1998 came into force for almost twelve years and it was drafted in response to years of debate about whether the United Kingdom should introduce a bill of rights and if so, what kind. The Act protects humanrights and civil liberties in the UK; therefore, the Act has brought rights home. However, it is necessary to consider whether its legal form serves the purpose for which the Act was enacted i.e. to create more efficient humanrights culture. Therefore, to assess the impact of the HumanRightsAct1998 on Doctrine of Binding Precedent a number of question must be addressed such as the status of the decisions of the European Court of HumanRights (ECtHR), whether the new Act has remedied the...
...Law Assignment 13-03-2013
1. “The HRA 1998 provides powerful protection for individuals in many aspects of their lives.”
* To what extent is this statement true?
Illustrate your answer by reference to areas of law with which you are familiar.
Before 1998, the United Kingdom did not have a piece of document that specified the basic rights of the English people. However, in the year 1950, the United Kingdom Government signed the European Convention on HumanRights, to protect people’s rights from abuses seen under Hitler’s rule, following the Universal Declaration on HumanRights made by the General Assembly of the United Nations in 1948. Even so, the European Convention on HumanRights had not ratified and incorporated itself into law until 1998 when Parliament enacted the HumanRightsAct.
The HumanRightsAct1998 states that when judges are deciding cases in which a question about a Convention right has been brought forward, the court must take into account any judgment, decision, declaration or advisory opinion of the European Court of HumanRights. This means that instead of a conflicting decision by the United Kingdom court, the court must follow decisions of the...
...development of humanrights legislation and whether the HumanRightsAct has helped to protect the rights of British citizens.
The general aim of this essay is to;
1) To follow the development of humanrights legislation, from the end of World War 2, to the present day.
2) And how the HumanRightsAct1998, has affected the lives of British Citizens, for example recently a law allowing terror suspects to be detained for up to 90 days without charge, but this was dropped as it was deemed to breach the rights of those being detained for such a long period of time.
After World War 2, appalled by the atrocities committed during the war, The United Nations adopted the universal Declaration of Rights in 1948. Although not legally binding, it urged member countries to promote certain rights contained within the declaration. The Universal Declaration was the first ever international, legal attempt to limit the behaviour of countries.
The Universal Declaration of HumanRights contains 30 articles. But the most important of these are articles are considered to be the following;
o The right to life, liberty, property and security of person.
o The right to an education
o The right to...
...The HumanRightAct1998 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 HumanRight. 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 HumanRight 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...
...European Convention on HumanRights
The European Convention on HumanRights is a binding international agreement that protects the political and fundamental civil rights of human beings and their basic freedoms. The Convention was drafted in 1950 by the Council of Europe, and came into force on the 3rd of September 1953.
In 1951, the ECHR was not yet part of the British Legal System. In 1997, the Labour government introduced a bill into Parliament to incorporate the ECHR – creating The HumanRights Bill. It was only in November 1998 that the ECHR became part of British law. This entitled each person to the right of individual petition to the British courts, should they feel that any right in the Convention had been violated.
Unlike the Universal Declaration of HumanRights (adopted by the UN in 1948), the ECHR has been adopted by the Council of Europe and has been sanctioned by many countries.
Articles within the European Convention on HumanRights
The ECHR is divided into three sections, consisting of fifty-nine articles – and a further thirteen protocols (European Court of HumanRights – echr.coe.int website). Below I have highlighted some articles from the three sections.
Section 1 is concerned with the...
Discuss whether the HumanRights succeeded in doing what it was designed to do
Prior to HumanRightAct1998, 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, HumanRightAct1998 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...
...replacing the HumanRightsAct1998 with a British Bill
of Rights and Responsibilities.
The HumanRightsAct1998 (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 HumanRightsAct1998, and reasons the current coalition government would consider replacing the HumanRightsAct1998 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...
...University of London
Common Law Reasoning and Institutions
Essay Title: ‘Judicialprecedent is best understood as a practice of the courts
and not as a set of binding rules. As a practice it could be
refined or changed by the courts as they wish.’ Discuss
Judicialprecedent is a judgment or decision of a court which is used as an authority for reaching the same decision in subsequent cases. In English law, judgment and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is part of the judgment that represents the legal reasoning or ratio decidendi of a case that is binding, but only if the legal reasoning is from a superior court, and in general, from the same court in an earlier case. Accordingly, ratio decidendis of the House of Lords are binding upon the Court of Appeal and all lower courts and are normally followed by the House of Lords itself.
The doctrine of judicialPrecedent did not become fully established until the second half of the nineteenth century. Until 1898 the House of Lords had the power to overrule it’s own previous decisions. One important and distinctive element of the English law is that the reasoning and decisions found in preceding cases were not simply considered as a guide....