• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

In English

Extracts from this document...

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. ...read more.

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. ...read more.

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 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our AS and A Level Sources of Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related AS and A Level Sources of Law essays

  1. How has the European Court of Human Rights contributed to the protection of children's ...

    8 rights are too often not respected70. It is regretful that this empowerment does not apply to administrative/disciplinary procedures - ward/secure accommodation order, expulsion from school - whereas Dutch legislation provides this71. Elsewhere, the Court has achieved remarkable results, like proclamation in Marckx v.

  2. Evaluate the extent to which the Human Right Act 1998 is consistent with the ...

    and subordinate legislation too will survive if there is no room under the primary or enabling legislation to remove the offending parts.16 The key feature of the HRA is notable in Section 3- a duty placed on the courts and tribunals to read and effect all legislation, 'whenever enacted', in

  1. Free essay

    heirachy of civil courts

    The divisional court of the Queen's Bench division also exercises an appellate jurisdiction on points of law in cases stated by the magistrate's court. This form of appeal which may only be used to challenge a decision made on points of law not on points of fact, is referred to as an appeal 'by way of case stated'.

  2. "In form, the Human Rights Act (HRA) is compatible with parliamentary sovereignty. In practice, ...

    There was overwhelming emphasis during Parliamentary proceedings that the Act is designed to be compatible with, if not to strengthen, Parliamentary sovereignty, while also giving effective protection to Convention rights (Rights Brought Home: The Human Rights Bill, 1997). "It is clear", said Lord Steyn in R v DPP, ex parte

  1. Discuss the extent of the states obligations under articles 2 and 3 of the ...

    This latter interpretation was reinforced by a 1997 case before the European court10, in which it was held that Article 3 includes the right to be allowed to die with dignity.

  2. Women and Discrimination under the Law

    medical condition which will require him to be absent for the same period of time and at the same time as the pregnant woman'. This at least resolved the problem of totally excluding pregnant workers from protection under the anti-discrimination legislation; however, it had the unfortunate effect of stigmatising pregnancy as something that was related to illness.

  1. It could be argued that the employment tribunal system is a breach of Article ...

    This Article is similar to Article 79 of the Fair Employment and Treatment (NI) Order 1998. Article 8 of the Convention protects the right to respect private and family life and correspondence. The relevance of this Article to employers is in situations where there is an encroach into the privacy

  2. Outcome (3): Analyse the provisions relating to the police powers of arrest, search, seizure, ...

    crime is investigated and in order that he be forthcoming to answer an alleged or suspected crime" (Bevan, Pg 215). The powers of arrest used to be very straightforward before they were amended by the House of Lords In the Mohammed- Holgate V Duke (1984), just before PACE was introduced.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work