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In English

Extracts from this essay...

Introduction

In English law, there is no formal separation of public and private law, no constitutional court and before the enactment of the Human Rights Act 1998 there has been no catalogue of fundamental rights as it can be found in many continental European constitutional documents. The major source of fundamental rights in English law is now undoubtedly the Human Rights Act 1998 (HRA) which implements the European Convention on Human Rights (ECHR) into English law, which came into force on 2 October 2000. In accordance with the doctrine of parliamentary sovereignty, the HRA has no higher status than other Acts of Parliament. It is not possible for courts to override primary legislation that is incompatible with convention rights, or to declare it unconstitutional. This is portrayed in s 4 of the act which empowers the courts to declare that primary legislation is incompatible with the ECHR. This declaration, however, does not affect the validity, continuing operation and enforcement of the provision in question which remains even applicable to the case in question. The primary responsibility for ensuring compliance with the Convention is placed on 'public authorities', s. 6 HRA 1998. Section 6 (1) of the Human Rights Act states that 'it is unlawful for a public authority to act in a way which is incompatible with a convention right'. Section 6 (3) (b) further provides that 'public authority' includes 'any person certain of whose functions are functions of a public nature'. While it is clear which so-called 'pure' public are likely to be caught by the Act - for example, government, police, NHS trusts - it is extremely unclear which so-called 'functional' public authorities are caught, that is, those bodies that only sometimes exercise public functions.

Middle

They could do so only if the prison officers' unlawful conduct was a tort or breach of a statutory duty. Unfortunately for the claimants, the Human Rights Act was not in force at the relevant time. This meant that they could not rely upon a breach of the duty imposed by section 6 of that Act read with the Convention right to respect for private life. They therefore had to fall back on convincing the Law Lords of the existence of a common law tort. Wainwright provided the Law Lords with an opportunity to develop the law, at least by way of dicta. The case did not raise sensitive issues about the balance between free speech and personal privacy. It concerned an intrusive strip search of the claimants conducted in breach of the relevant prison rules and without statutory authority. To areas of law where the use of the HRA 1998 has brought about actual change in the law recognising individual rights, is rights of same-sex cohabiting couples and the rights of transsexuals. For many years following the decision in Corbett v Corbett, the principle is English law was that a person's gender is fixed at birth. Therefore, even if a transsexual had undergone full gender reassignment surgery, the law still regarded that person as having the pre-operative gender. The issue on marriage arose form s. 11 {c} of the Matrimonial Causes Act 1973 that a marriage was void unless the parties were respectively male and female. In Ballinger v Bellinger, the House of Lords decided that Corbett had correctly interpreted s.

Conclusion

For individuals the HRA 1998, on the one hand it could be argued has been a protective instrument, as they are now able to raise human rights issues, at least as defined by the Convention before the ordinary courts, and certain rights are being upheld, even if they are not upheld in every case. Therefore, it could be argued that the HRA 1998 appears to have a significant and positive effect on the development of civil liberties in the UK. However, there are rights which are still limited, for example, free speech is still the subject of controls which can be regarded as excessive in relation to official secrets, and the censorship of films. The freedom to engage in public protest operates within in framework which is the subject of close supervision by the police. 1 R v Servite Houses and another, ex parte Goldsmith and another [2001] LGR 55 2 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] 33HLR 823-846 3 [2004] UKHL56 4 Schedule to the Human Rights Act 1998 (Designated Derogation) Order 2001. Derogation isonly permitted under Article 15 of the Convention in " time of war or other public emergencythreatening the life of the nation... to the extent strictly required by the exigencies of the situation.." 5 Douglas and other v. Hello! Ltd and other [2003] All ER 209 6 Wainwright and another v Home Office [2003] UKHL 53. 7 [2002] Ch 380 8 Gender Recognition Act 2004, and the Civil Partnership Act 2004 9 2 AC 532 (HL). 10 [1979-80] 1 EHRR 737 para 49 11 R (ProLife Alliance) v British Broadcasting Corporation [2003] 2 WLR 1403. 12 Eric Barendt, Free Speech and Abortion [2003] P.L 580. LA304 263838

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