The costs of solicitors and barristers fees are extremely high, so if the fees of legal action were reduced, the judicial system would not only be fairer but would also enable more people to ensure their rights. The first step, introducing a 'no win, no fee' format was followed by a major reform of the free legal aid system to allow every citizen the right to a just trial. The Human Rights Act gives every citizen the right to a fair trial by an impartial tribunal, so now the judicial system will have to follow up on this law. Another solution to the high costs could be to remove barristers' monopoly in court, so barristers would lose their monopoly on representing clients in the higher courts. Instead, salaried lawyers working for law firms and for the Crown Prosecution Service would be able to represent clients in court.
From Item A, there are various ideas that would make sense and various ones that probably wouldn't work in the judicial system.
To replace the adversarial system that encourages artificial competition between lawyers with an inquisitorial system would be a good idea as younger judges have more chances of making a career in Law. This would make the judicial system possibly cheaper, and would make cases shorter, although it may be a problem as younger judges may have less experience than older judges, and so may give incorrect judgements.
If a specialist track for becoming a judge were set up similar to the one in Germany, young lawyers would get the chance to choose specialist training courses instead of becoming solicitors or barristers. This would be a good idea as it would broaden interest in law, and it works in Germany so could potentially work in England, however, it would be expensive to set up, and it may lessen the chances of making a top judge as there would be more competition.
To draw up league tables would be a short term advantage to make judges perform well, but it might turn into the same situation as we have with schools; the competition and importance of league tables often undermines the actual quality of the teaching, and schools that are at the bottom of the list feel inferior and sub- standard. If the same was to happen in the judicial system, there would be a lot more competition and judges might resort to dismissing cases and caring more about their position in the league table than the job itself. It would cause elitism problems and money problems also as judges may argue about their pay and facilities.
If more petty offences such as shop lifting were dealt out of court by issuing on the spot fines, it would almost certainly save time for judges to focus on more important cases, and would be cheaper to carry out than a full case. However, it may not work as much of a deterrent if the criminal is wealthy and can afford to pay out fines, and it may be a problem deciding where to rule the line on petty and serious crimes.
If a group of para-legal advisors were to provide cheap advice, leaving lawyers to work with court action, it would certainly save money and time, but the group would have to be fully qualified and unbiased to provide a worthwhile purpose.
People with similar cases who are brought to the courts as a group of people with similar situations would not only save time and money for both sides of the case, but would also be able to possible categorise different cases. However, it may be difficult to categorise various cases as most cases have different circumstances, and so it may not work. If this idea to reform the judicial system was proposed and didn't work, it would create a number of problems for the judges, the government and the citizens involved in the cases.
Computer-based systems in libraries and advice centred would probably save time in the long run, but cannot guarantee the same professional advice as humans, and similar to the previous point, it would be hard to categorise many cases due to the differing circumstances. Although it would save time for solicitors, lawyers and barristers, not all cases can be solved on computer software, and the possibilities of crashes, errors, mistaken advice and computer misuse would all pose problems, which would probably rule is a bad idea.
All these suggested ways would possible work in the UK judicial system, but there are many disadvantages with certain ideas that would introduce even more problems which would defeat the object of reforming the judicial system to improve it.
2
Judging from items B and C, the incorporation of the European Convention on Human Rights is going to have a tremendous affect on UK law. Part of the British constitution has now been codified, so it can be referred to and it will be easy to see when someone breaches these rights. Before the Human Rights Act was made law in October 2000, citizens had nothing to back them up when they felt their rights as a citizen had been infringed apart from taking the case to the European Court in Strasbourg. Now, there are many different cases that allow citizens to do things they were never previously lawfully allowed to do. The Human Rights law is now entrenched in the UK Judicial system, and so it will be much more difficult to repeal an entrenched Act of Rights than say, an ordinary law, and breaches of basic human rights will be actionable directly in the UK courts.
The main effect of the Act is that a claim will now be able to be brought to enforce rights granted under the Convention direct before the British Courts. Claimants will not be burdened with the cost and delay of taking a case to the European Human Rights Commission and Court in Strasbourg. Human Rights are often thought of as a narrow concept of individual rights, such as the right not to be discriminated against on grounds such as race or religion but the definition embraced by the Convention goes much further. Included within the Convention's concept of Human Rights are social and economic rights such as freedom of association and freedom of peaceful assembly. Such rights will impact upon a wide-ranging number of areas of law such as employment and commercial contracts. The protections afforded by the Convention can apply to individuals, companies, non-governmental organisations and groups of individuals in both criminal and civil court cases. The bill makes it unlawful for any public authority to act in a way that is incompatible with the Convention. A public authority is defined by the Act to include courts, tribunals and anyone whose functions are of a public nature. Legal proceedings may be brought against a public authority if a person, company or organisation suffers as a result of an authority's unlawful act.
Article 2 of the European Convention on Human Rights states that everyone has the 'right to life'. This may pose problems in Britain especially it may mean that some people can ask for abortion to be made legal as the right to life is denied by females who choose to have an abortion. In the future, this possibly may have to become a decree, as this law is not unheard of in many other countries.
Article 12 of the Convention could suggest that homosexual marriages are included in a citizen's legal rights, and so UK law may have to change to allow all homosexual marriages to take place. This will not only cause problems for the Church as they might not be willing to conduct ceremonies, but also homosexual discrimination in the police force, in the judicial system and many other places will be taken to the courts if the 'freedom of expression' is ruptured.
Many of the cases described in item C show situations where the law will have to be modified due to the incorporation of the Human Rights Act into UK law. If the courts refuse to abide by the Act when judging a case relating to the Act, the citizen involved will be able to take the case to the European Court of Justice. This will not only appear bad for the UK judges as they have not maintained the conventions in the Act, but will also cause problems if their case is successful in Europe.
With the UK courts almost representing the British people, there is a possibility that they will have to deal with so many cases that there will be less time to judge other cases such as murders or frauds. Along with the lack of money to fund the courts and legal aid for citizens, money will be needed to train judges to be able to deal with the new types of cases. What the government does not need is the whole annual Budget being spent on funding cases where citizens believe their rights have been infringed. There is also no say on which cases are necessary and what cases aren't, and when the courts have become climatised to the Act there may be a new need for judicial reform due to the Human Rights Act.
An example of a case that may pose problems to UK law could be the recent abundance of asylum seekers wishing to live in Britain. If one person decided to take their case to the UK courts in compliance with the Human Rights Act, possibly claiming their right to enter and stay in one's country as described in Protocol 4, Article 3 of the European Convention of Human Rights. If one case is ruled successful, then thousands, even millions of foreign people will be immigrating to Britain that will not only cause economic but social problems also. Since the Courts and the judges now have the right to prevent event the Government from breaching the Act, the Home Secretary will have almost no defence in limiting immigrant numbers. Also, if the British Courts were involved in maintaining asylum seekers' rights, it would simply take up so much money and time that the UK judicial system would be extremely corrupted as UK criminals and people claiming impeachment of their rights would have less time spent on them.
Since the Human Rights Act has only been a law in Britain since October, the major impacts and problems of the Act on UK law has not fully become conscious, and the possibilities of future cases cannot be prophesised. The examples in item C only suggest a small number of cases; the extent to which the courts will allow British citizens to claim infringement of rights cannot be predicted either, and now the Act has been passed, the courts now have full responsibility for protecting citizens from any public authority, citizen or the government itself.
Whereas now sovereignty in Britain mostly lies in Parliament, the 'ultimate overseer' will now lie in the courts with the judges, or more likely, in the people. The majority of cases that will be brought to the courts will have a back up from the Human Rights Act; if the victim felt that the case wasn't important enough then they wouldn't have taken the effort to take their problem to the courts. Therefore, there is a possibility that the judges will end up ruling in the victim's favour most of the time as the written Act of rights has to be adjourned to.
The recent development of the Human Rights Task Force chaired by Lord Williams of Mostyn will help the government prepare for implementation of the Human Rights Act, however some of the Act's provisions can be implemented in advance of the main provisions, for example Government Bills will have to be compatible with the convention.
Since the Act is a codified document like the written constitution for America, it has been suggested that the Human Rights Act could possibly be the next step to a whole written constitution, and although this may mould a number of implications, written constitutions are used all over the world without major problems, proving that they do work. Also, many countries incorporate a bill of rights into their laws, and many countries in Europe follow the same convention of human rights without any disagreeable predicaments.
The government and the courts seem to be ready for the significant change that will occur with the legislature of the Human Rights Act, and even though the swarm of UK citizens wishing for a case to prove their rights have been broken has not come yet, there is still time before the Act dramatically impacts UK law.
3
The Human Rights Act was made law in October 2000, and this means that the European Convention on Human Rights is now incorporated into National Law. So far as is possible all legislation must be interpreted to give effect in a way which is compatible with the Convention rights. The statement referring to the Human Rights Act 'a flawed piece of legislation' can be seen as both correct and incorrect by many different people depending on their views. There is no doubt that there are a number of advantages and disadvantages, but whether they contribute to making the Act a positive or negative move by the Government is a debatable issue.
The Human Rights Act 2000 sets out the British citizen's rights, ranging from the right to privacy to the right to move and stay in one's country. This is a benefit as now there will be more equality before the law; racist and sexist discrimination will be illegal, whether it is from individuals or companies. The Human Rights Act expands on the 1976 Race Relations Act, which made sure racial minorities were subject to the same policing and immigration methods as white people. Also, the Act expands on limiting religious, sexist and class discrimination, shown in 'the right to freedom of thought, conscience and religion'.
However, this may be a negative validity as groups such as anti-Semitic, anarchist and other extreme groups must also be subject to the same laws. They too must have the 'freedom of assembly' so long as it is peaceful and not obscene, which causes problems for the affected groups such as the Church or the Monarchy.
Despite the fact that the Church agreed with rights such as the right to 'freedom from torture and degrading treatment and punishment', there are also some Articles that they are not too pleased with. Previous to the legislation of the Human Rights Act, the Church of England and the Roman Catholics have frowned upon marriages between homosexuals, but since the Act has been passed they may have to allow them as everyone has 'the right to marry' and 'the right to freedom of expression'. However, Roman Catholics may be pleased with Article 2 'The right to life' as this has the potential to make abortion illegal.
The UK Human Rights Act will have more authority to protect citizens from individuals, groups or even the Government. For example, the Act will be able to deny access to parents who abuse their children as they are being denied 'the freedom from degrading treatment', and even protect adults from children with unacceptable behaviour; there are many child curfew laws and restraint orders being introduced at the moment. However, this may not be fully maintaining the offending children's parents' rights if their offspring is open to a series of treatments.
One bad thing about the Act is that the judiciary system will have to be extensively trained into dealing with cases that involve the Human Rights Act. In 1998 the Lord Chancellor referred to the role of the Judicial Studies Board in developing plans for such training, so British Judges are at least aware of some of the details. However, Judges will be trained to refer to textbooks or directly, through information technology, to the European Court's own database of judgements to ensure correct decisions on cases in England.
The cost of the implementation of this training for the judicial system has proved to be extremely expensive; the Lord Chancellor and the Home Secretary have set a total of £4.5 million aside. Together with the possible cost of the cases themselves in the future, and the guarantee of legal aid to those who cannot afford solicitors' fees, the
Performing of the Human Rights Act will cost taxpayers a great deal of money. However, it may be a small price to pay for the absolute entitlement to British citizens of their rights as a human being.
Many people believe that the Human Rights Act is enhancing British sovereignty; the courts will be able to overrule the government if they breach the convention, possibly suggesting that total power lies with the judges. Judges are not elected, and if our British sovereignty is going to lie in their hands, many people may request that the courts are elected and therefore democratic. However, since the judges will have a codified document that they have to refer to, there may be only a small chance that their powers are abused as they cannot be biased. Despite the concept of sovereignty becoming an issue, the UK courts will still have to be accountable to the European Court of Justice, and so it could be said that sovereignty therefore lies in Europe. However, this can be a positive situation for the citizen who claims to be a victim as if the UK courts rule them unconstitutional, they still have the option of going to the European Court with their human rights problem. However, this is costly and timely, and many people may not bother unless their case is very important.
The Human Rights Act can be said to enhance traditional values, as opposed to ending them, and the Human Rights Task Force strongly believes this. Even though there has been allegations that the Act has a strong impact on public schools and other private bodies with public functions, the Task Force condemn this by saying that many people are not interpreting the Human Rights as they are intended to be interpreted. They suggest that the rights in the Human Rights Act are not new; many of them came from the UK in the first place, and so does the idea of balance and responsibility which provides the context for interpreting these rights.
John Wadham, Director of Liberty in Human Rights Task Force defended the Act by saying:
"The Act brings rights home and will undoubtedly lead to some fresh cases in our courts. But it's important to see the Act in context. Most European countries incorporated the ECHR years ago. Public authorities there have found the process a help, not a hindrance to good management. The suggestion that the statute book will be rewritten overnight is nonsense."
An advantage of the Human Rights Act is that the written document ensures that the government cannot abuse the Act, and any future dictatorships will not be able to put civilian's rights under threat as a bill of rights would make all rights and obligations clear to understand. Also, it would prevent any government from breaking various conventions; at present, the Prime Minister has the power to abolish the monarchy, and even though it would be unconstitutional the Act imposes legal limits of governments.
A bill of rights has educational value; the recently passed Human Rights Act has been a much-discussed issue in school that has made children more aware of not only politics, but also their rights and obligations. The present Labour government has introduced citizenship into the National Curriculum, and the Human Rights Act may be included in that.
The European Convention of Human Rights has been a set of guidelines for other countries to form a bill of rights for their country. Human Rights Acts have worked well in other countries despite the number of disadvantages, and so by implementing the UK Act we are following in the footsteps of other successful Acts. However, many people, mostly 'Euro - sceptics', argue that the Human Rights Act is simply a decoy to manipulate people into wanting to move closer into a 'United States of Europe'.
There are also many disadvantages of the Human Rights Act; for example many people feel it is simply unachievable in Britain today due to all the implications it would bring with it. It may not be clear how to interpret 'rights', and there are no set guidelines of what format the Act should take, such as how entrenched it should be. Many existing laws conflict with our Human Rights Act which is obviously a negative thing, and even though the Labour government introduced the Act to gain support from electorates, they surely cannot be pleased with the limits they have placed on their own power.
Also, many people believe UK citizens' rights were adequately protected before the Act was introduced, and it has been an expensive waste of taxpayers' money. The Human Rights Act that has been codified may possibly suggest a step forward into a whole new written constitution, although this is a totally different issue.
Overall, there are many different advantages and disadvantages that suggest the UK Human Rights Act are both good and bad, although Britain will not be able to judge it until the progress has been analysed and evaluated in the future. It has only been made a law for two months at present, so there is still plenty of time in the future to decide on the outcome and consequences of the Act.