To illustrate the important influence of the European Court of Human Rights and to address the significance of the Human Rights Act (1998), it is necessary to firstly look at Article seven, which states that “no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law at the time it was committed”. In the cases of SW v United Kingdom; CR v United Kingdom, [1996] the two defendant’s tried to use this article as a defence for the rape and attempted rape on their (at the time) partners. When they were convicted, rape within marriage was not seen as a crime. However, the ECHR held that such an act was so “manifest” that the decisions in the Court of Appeal and the House of Lords were to be upheld.
Human rights are said to have been derived from the Magna Carta, signed by Prince John in 1215. It has been described as “the biggest change to UK law since the 1688 bill of rights”. The Human Rights Act 1998 was incorporated into English law and took effect in October, 2000. It is not an extension of The ECHR, but aims to reduce the cost and delay of taking a case to the European Court of Human Rights which sits in Strasbourg. The Act applies to all public bodies, for example the police force and the Government departments, and does not impose duties on any given individual or company, unless it can be shown that they are partaking in a public function. Although the components of the ECHR were incorporated into English, domestic law, under certain circumstances there is still the possibility of bringing an action in Europe.
One way in which the Human Rights Act (1998) can be said to have made a significant difference is in the respect that should any secondary legislation i.e. statutory instrument come into conflict with this Act, it must be altered or can be struck down and declared void. There is also the need at the common law for changes to be made in order to fit the respects of this Act. primary legislation i.e. Parliamentary statutes are another form of legislation that must comply with the rights of the convention, so far as is possible. In the event that this is not always possible, the legislation can be hurried through Parliament and the law amended accordingly. In other words Ministers only have the power to change other Acts to make them compliant with that of the HRA.
Some positive elements which have arisen as a result of the introduction of the HRA into UK law include the concept of “economic, social, and cultural rights”. For example, the introduction of the Act can be viewed as significant due to the fact that the UK now operates a system, whereby there are seen to be fair wages in the workplace, equality in promotion, holidays and rest periods etc. Leaving behind inequality and unfair labour.
There are a number of cases illustrating the effects of the Human Rights Act upon UK Law. Under this Act it is possible to bring an action in tribunal proceedings. Such as, cases of unfair dismissal etc. Although, there is usually a one year time limit in which this action must be brought. In the case of Findlay v UK [1997] the way in which the Judges were appointed was addressed, as was their term of office and any pressures influencing them in establishing the independence of a tribunal, in appliance to Article six. The UK Systems of Courts Marshall, as a result was found not to be convention compliant.
Article two of the HRA states that “everybody is entitled to the right to life and that everyone’s right to life shall be protected by law”. On 20th May 1999 the HRA ensured the permanent end to the Death Penalty when it ratified Protocol 6 to the European Convention on Human Rights, meaning that it was no longer a possibility to be executed for committing military offences.
Under Article three, prohibition of torture, it states that “no one shall be subjected to torture, inhuman or degrading treatment or punishment”. As a result of this Article under the HRA, failure to prosecute police and prison officers when it has clearly been found in an inquest that the victim has been unlawfully killed whilst in the custody of the police or prison officer, may well lead to a violation of the Victim or indeed the Family’s human rights. This is highlighted in a recent event whereby Christopher Hull was found to been unlawfully killed whilst in custody. The officers were prosecuted for neglect of duty.
Under Article 14 of the HRA, prohibition of discrimination, it was evident that prior to the passing of the Act, there was a great deal of prejudice. For example, the Daily Mail reported that a Sikh terrorist was unable to be deported as he would have faced torture back home in India. Although, the way in which the article was portrayed made the element of returning home to torture sound like a mere bother. This only highlights the issues of racism and the need for this Act to help eradicate it.
There are circumstances where clashes can occur in regards to both parties using Articles of the Act as a defence. An example of this could be where an animal protestor choosing to protest outside the home of a scientist, could use the defence of Article 10 and 11 of this Act, freedom of expression and freedom of assembly. However, the Scientist could use Article 8, the right to protect their home, in order to eradicate the protestor. Under article eight, the right to family life, an HIV-infected man from Colombia, was jailed for being in possession of drugs and causing grievous bodily harm. He won the right to stay in Britain pending the outcome of his former partner's application for asylum. Here is an example a weakness on behalf of the Act as many aspects can be used as a form of defense, whether the person is guilty or not.
As is evident the Act harbours strengths, just as it carries weaknesses. Now that the Act is being adhered to, the levels of “inhuman” treatment, such as slavery and discrimination is not only reduced, but punishable. However, a weakness of this act comes at the price of a whole new range of defences being made available to defendant’s as discussed above.
In relation to the question, has the Human Rights Act (1998) made a significant difference, it would appear that it has indeed made a significant difference. Prior to the Act, it was often extremely costly and time consuming having to take a case to the European Court of Human Rights in Strasbourg. However, as a result of the HRA this cost and time is now significantly lower. It is still a possibility that a case may proceed beyond the domestic courts, although, this usually only happens after all other methods have been exhausted.
The Act has played a major role in relation to any legislation that should happen to come into conflict with it. As has been established above, should this occur, various measures will be taken and in cases where primary legislation cannot be seen to comply it is possible for the legislation to be amended by Parliament, although the process may be hurried. The Act was also responsible for the complete abolishment of the death penalty for all crimes, including the last crime punishable by death in the UK, which was committing military offences.
It is also evident that as a result of this Act being passed it allows for more defences should someone commit a crime as seen in the case of the HIV Infected man. However, the Articles under the Act do not always act as valid defences as outlined in SW v United Kingdom; CR v United Kingdom, [1996].
The Human Rights Act (1998) has made a significant difference in that it has begun to tackle the issues of racism regarding asylum seekers, and now demands that proper investigations are carried out into deaths of prisoners, whilst in custody and also into racial attacks. As a result of the Act the issues which needed to be addressed as outlined in the Articles, which were preventing the UK from acting as a humane society, are being adopted to ensure that Britain functions as a respectable state.
