Assess the impact of the introduction of the Human Rights Act 1998 on the rights of an individual in the UK.
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zhilinglim27gmailcom (student)
Human Rights Act 1998 European Convention of Human Rights(ECHR) is drawn up by the Council of Europe after World War 2. The European Court of Human Rights is located at Strasbourg. The Convention sets out the rights and basic freedoms that people are entitled to expect. The Human Rights Act 1998(HRA) incorporates the rights enshrined by the European Convention of Human Rights into domestic law. Prior to the Human Rights Act 1998, a person can bring a case to court when the state has ratified the Convention. If a breach of rights is recognised by courts, UK will then amend their laws (that are in contrast with the ECHR), this may be expensive and slow. As the ratification of the Convention is not incorporation into domestic law, there is supremacy of the Parliament, hence judges have no jurisdictional basis on which they could employ the Convention. In the R v Inland Revenue Commissioner’s case it was held that will of parliament is upheld where the statute is clear and unambiguous. This position changed radically with the passing of Human Rights Act incorporating the Convention into domestic law. The Human Rights Act protects the rights such as the right to life (Article 2).There is no violation where a loss of life is due to reasonable self-defence and necessary for lawful arrest. However, the scope of Article 2 is broad and vague and it is unclear as to the duty that is upheld by the state providing social and economic circumstances to uphold the right to life. For example, ECtHR recognises the need for state to impose death penalty. A case in the ECtHR would be Mcgann, Farrell and Savage v UK. In this case, it was held by the court that the information regarding the movement of the suspected terrorists was sufficient hence the shooting of the suspects by the security forces did not violate Article 2. In addition to the inadequate control of the security force, the court held that killing was ‘more than absolutely necessary’. In the case of Pretty v DPP, Diane was a victim suffering from motor neurone disease. The court held that the Article 2 that protects the sanctity of life did not entail a right to terminate one’s owns life. Article 5 is a right to liberty and security. However, this does not include lawful arrest and detention. It includes a right to be informed of the reasons of arrest and charges being brought as well as the right to be released pending trial.
In the case of Steel v UK, the arrest of protesters breached Article 5 on the grounds that it was peaceful and there was no obstruction or provocation. Also in the case of Austin v Commissioner Police of the Metropolis, there was a cordon of 3000 anti-capitalist demonstrators. This did not violate the Article 5 as the arrest was lawful, proportionate and was not longer than necessary.(Hence individual protection are given up in the expense of the interest of wider community) It can be seen in this case that the rights are protected under the articles in the ECtHR whereas ...
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In the case of Steel v UK, the arrest of protesters breached Article 5 on the grounds that it was peaceful and there was no obstruction or provocation. Also in the case of Austin v Commissioner Police of the Metropolis, there was a cordon of 3000 anti-capitalist demonstrators. This did not violate the Article 5 as the arrest was lawful, proportionate and was not longer than necessary.(Hence individual protection are given up in the expense of the interest of wider community) It can be seen in this case that the rights are protected under the articles in the ECtHR whereas the UK courts uphold such rights. HRA incorporation allows the rights to be enforced in the UK cases. Human Rights Act incorporates the Convention into domestic law which strengthens the protection given to individuals and provides improved remedies if rights are violated. If rights are violated, individuals can apply directly to the UK courts and do not have to go all the way to Strasbourg. S.2 HRA 1998 states that domestic judiciary must take into account the Convention as relevant to the case although it is not bound by it. The UK Courts have to interpret all legislation in a way which is compatible with the Convention rights ‘so far it is possible to do so’. This is much further than just allowing ambiguities to be interpreted in favour of the Convention. However it is a weak obligation as courts are not bound to follow but it is still better than before as courts do not even need to consider the Convention. Section 2 does not give much impact on English law as it is not binding, but may be more impactful if it is. S.3 HRA 1998 requires the primary and secondary legislation, whenever enacted, to be interpreted and applied in a manner which is consistent with the Convention. This promotes human rights as it ensures that laws that are created comply with the ECHR which has a beneficial impact on the English law. However, it is clearly stated in s.3(2) that this requirement will not affect the validity of existing primary and secondary legislation that are incompatible due to parliamentary supremacy. Hence, there is not much beneficial impact as the rights are not protected and the status of the legislations would be same as preHRA. ECHR law are not enforceable when there is a conflict. S.4 HRA states that courts can declare incompatibility where legislation is worded in a way that makes it impossible to be interpreted to comply with the ECHR. The power to amend lies with the Parliament although a fast track legislative procedure will be employed to facilitate rapid parliamentary action and for ministers to make necessary amendments to the legislation to remove incompatibility. This is a beneficial impact to the protection of individual rights as changes can be made to be in line with the ECHR, which enables people to enjoy the benefits in the future. A remedial order under s.10 may be made under s.10. However if Parliament chooses not to amend, the ECHR is not enforced. Also, s.4 has no effect on the case that has been brought to court as constructing AOP prevail. (Thus individual rights are not protected if they are the ones bringing the case to courts.) S.6 HRA makes it unlawful for public authority to act in a way that is incompatible with Convention rights. Public authority is any person with public functions hence this includes courts therefore legal proceedings should apply s.6 of HRA. As illustrated in Douglas v Hello! Case, the unauthorized publication of Michael Douglas’s wedding breached Article 8. Although the legal proceedings were between private parties, the Convention was relevant as court is a public authority and must follow ECHR. Hence private parties are indirectly affected. s.7 states that only the victim of the unlawful act may bring proceedings against public authority. If it has been recognised that the public authority has acted unlawfully, relief may be granted under s.8. This further protects individuals as it deters public authority to act unlawfully. However, it is only limited to a range of people and is stricter than sufficient interest test. Pressure groups cannot bring issues to courts as they are not considered ‘victims’ under HRA. Article 15 states that a state member can derogate from ECHR in the time of war and emergency. However a notice must be given by the Secretary General. This does not enforce the ECHR hence does not protect individual rights. Advantages of HRA is that it can be heard domestically so people can be more aware of their rights compared to matters heard in Strasbourg. More people will be willing to bring matters to court and thus strengthens human rights. Also, UK courts have developed knowledge of its provisions as the decisions have been challenged in Strasbourg. Hence incorporation of tried and tested rights in the domestic law will be easier. However, there is no impact where derogations are used under Art 15 when ministers depart from ECHR in times of emergencies. HRA has much beneficial impact however it cannot enjoy greater impact unless human rights are entrenched and parliamentary sovereignty forgone to enforce ECHR.
