Discuss the case for replacing the Human Rights Act 1998 with a British Bill of Rights and Responsibilities.
The Human Rights Act 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 Human Rights 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 Human Rights Act 1998, and reasons the current coalition government would consider replacing the Human Rights Act 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 Human Rights (ECHR) was formed, and the European Court on Human Rights (ECtHR) was established and located in Strasbourg. This treaty was signed by member states. However, British nationals who wanted to enforce their rights did not have any recourse in domestic courts and had to travel to Strasbourg to bring a case if rights were infringed upon. It was time consuming, far and expensive. The enforcement of the HRA 1998 effectively, ‘Brought Rights Home’. ART 2 Right to life, ART 3 freedom from torture, ART 4 Prohibition of Slavery, ART 5 right to Liberty, ART 6 Right to a fair trial, ART 7 Prohibition of retrospective legislation, ART 8 Right to private and family life, ART 9 Freedom of conscience and religion, ART 10 Freedom of expression, ART 11 Freedom of Assembly, ART 12 Right to marry and found family, Art 14 Freedom from discrimination. Over the years, post 9/11, it has become great concern...
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...
...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...
...The HumanRightAct 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 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 effect the validity of the Act of parliament, in the way, the Human...
...Humanrights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of humanright and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of HumanRights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for HumanRightsAct in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not...
...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...
...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...
...Since the coming into force of the HumanRightsAct 1998, changes have had to be made to the justice system in respect of Article 6, 'the right to a fair trial'. Critically evaluate this statement.
Reconciling domestic legislation with regulations acknowledged by the European Courts of HumanRights (ECHR) illuminates perceived violations of fundamental guarantees, integration being incompatible with the principles of accountability lying within the precepts of Parliamentary sovereignty and its doctrine of implied appeal. This concept has since been superseded by Section 2 (4) ECA 1972, which entails compliance to all Community legislation. The HumanRightsAct 1998 illuminated this problem but the ECHR were limited to ambiguities of interpretation with constrained formal recognition of its legality.
The 2004 Constitution of Europe consists of 36 Protocols altogether, two further ones of which relate to the Treaties of Accession. Associated with this Constitution are 50 accompanying Declarations which clarify the Charter of Fundamental Rights and which establish the European External Action Service, and the Final Act confirming the signatures appended by the Heads of the 25 Member States all agree with the Treaty, Protocols and Declarations which make up the Constitution. Whilst awaiting ratification, the...