The courts are now under a duty to develop the common law this is the law which has been developed through decisions of the courts themselves, in a way that is compatible with Convention Rights. Section 2 of the human rights act 1998 requires that all judges “at all levels” must take in to account Judgements of the European Court of Human Rights “based in Strasbourg section 3 of the Act requires that judges should interpret existing legislation as far as possible in a way which is compatible with the rights of the ECHR. Section 4 of the Act allows Judges to declare an Act or parliament is incompatible with the ECHR in a way effectively recommending that the act in question should be amended or repealed. The Human Rights Act gives greater effect to Convention Rights in two ways it makes it clear that as far as possible the Courts in this country should interpret the law in a way that is compatible with Convention rights. It also places an obligation to public authorities to act with convention rights. This was a major breakthrough in Human Rights legislation; Civil liberties groups had welcomes the Act, but there was a number of criticisms raised by them these criticisms were as follows the act can be repealed by parliament if it chooses, as the Act has not been entrenched into our constitutional system. Government is not included in the definition of public bodies so they are exempt from the power of the Act, interest groups such as trade unions or civil liberties groups cannot take action under the Act. The Human Rights Act 1998 stops short of making the European convention into a United Kingdom Bill of Rights; however it does enable Judges in the United Kingdom to look at legislation and the Acts of the public authorities in light of the (ECHR).
One of the important provisions of the Act is section 2 which is, High Courts may make a declaration of incompatibility with the ECHR. The High Court, the Court of Appeal and the House of Lords may clearly state that legislation and delegated legislation is seen as in breach of the ECHR. It is then for parliament to decide whether or not the particular law should be altered. The Courts cannot strike down an Act but may tell the government and parliament where there are problems.
The judiciary has a lot of power in determining the impact and success of the Human Rights Act 1998.
The Convention Rights are very loosely drafted and through their interpretation the Judges could easily dilute them and render them ineffective. The government acknowledges the central role of Judges in success or failure of the Act. It spent millions training Judges, Magistrates and Tribunal Chairpersons ready for implementation of the Act. The Human Rights Act presents an important advance for civil liberties in the United Kingdom; however there still are limitations on the impact that the Act will have. This includes legislation which is incompatible with the convention is still valid. Judges do not have the power to strike down offending statutes as unconstitutional, thus the principle of parliamentary sovereignty remains intact. When a Higher Court finds that legislation is incompatible with the Convention, then it can choose to make a declaration to this effect (Art.4) and a Minister can subsequently amend the offending legislation by a fast-track procedure which avoids the full parliamentary process.
An example of this was the case of Wilson v First Trust (2003) where the House of Lords declared that the provision of the consumer credit Act 1974 violated the Convention. The Courts appear to have accepted that the Convention has limited form of horizontal effect. In Douglas v Hello! (2001) photographs of the marriage of Hollywood’s celebrities Douglas and Catherine Zeta-Jones had been published without their authority by the popular magazine Hello!, the legal proceedings were between private parties, however all the Judges treated the Convention as relevant to the case because of the Human Rights Act 1998. The Douglas’s case was an example of Article 8: Right for Private and Family Life which states that every one has the right for his private and family life, his home and his correspondence. The judge in this case did not recognise and did not create a freestanding right to privacy in English law principally because he did not have to, the existing laws of confidence, and data protection, served to give the Douglas’s a retort for the intrusion into their privacy. The Douglas’s won on the grounds of a breach of confidence and data protection and received an injunction from future unauthorised photographs.
Well known cases illustrating the human rights act 1998
The first case involving the human rights act was Lee Clegg (2000) in this case excessive media coverage of the trial threatened to breach the right to a fair trial under Article 6. another case in which the right to respect of private and family life (Article 8) was the case of Naomi Campbell and Sara Cox, in this case two celebrities claimed that their Human Rights were being breached and successfully stopped media coverage about their personal affairs.
In 2005 the Court of Appeal upheld a previous decision by the High Court ruling that Leeds City Council could not infringe the right to a home by a Roma family the case also highlighted freedom from discrimination. In March 2006 the High Court ruled against a hospital’s decision to turn off the ventilator which effectively provided the right to life to Baby MB. In Connors v UK the European Court of Human Right’s decision declared that travellers who had their license to live on local authority owned land suddenly revoked had been discriminated against compared to the treatment of mobile-home owners who did not belong to the travelers population and their Article 14 (protection from discrimination) and Article 8 (right to respect for the home) had been violated.
Conclusion
In conclusion before the Human Rights Act civil liberties were not set out in an effective way, the UK Courts had no obligation to comply with the European Convention of Human Rights and the ECHR was only influential to decisions of UK courts. Legal action under the ECHR was only possible thought the European Court of Human Rights and could not be enforced in national courts. In comparison civil liberties after the act was passed had a major impact on UK law, residual freedoms still remained however, the European Convention on Human Rights must be incorporated in to the UK law. Courts must consider the laws and actions of public authorise are compatible with ECHR. Courts may make declaration of incompatibility but parliament is still not obliged to make changes to legislation. Legal action for breach of ECHR is now possible in the UK Courts and Courts might award damages.
When looking at the advantages and disadvantages of the Human Rights Act 1998 a well known case illustrates some of the problems with such Rights being granted to individuals. In May 2006 the treatment of nine Afghan men caused controversy. These men had hijacked a plane to flee from the Taliban the courts decision was widely condemned by tabloid newspapers; it was ruled by an Immigration Tribunal under the Human Rights Act, that the hijackers could remain in the United Kingdom. Such cases as these go on to question if the human rights act is too lenient. This case can be seen as a criticism of the act, because the 9 Afghani men committed a dangerous offence yet still won their right to asylum. The question of whether the passengers on the hijacked plane had a right to life and the right to travel safely outweighs the defendant’s right to asylum.
Can other individuals such as these 9 men profit from their crimes in the future. The advantage of the human rights act is that citizens have rights that are enforceable through national courts. Individuals can clearly understand their rights and are protected by the Human Rights Act in many different areas in their lives, from the work environment to the home environment citizens have reassurance in living in a democratic society.
