The Human Rights Act of 1998 is an act of parliament from the United Kingdom, which received the royal assent on the 9th November 1998 and came into force on the 1st of October 2000.
The Human Rights Act of 1998 is an act of parliament from the United Kingdom, which received the royal assent on the 9th November 1998 and came into force on the 1st of October 2000. The reason for this delay was so that the courts throughout the hierarchy, from the magistrates all the way up to the House of Lords could be adequately trained in the ramifications of the Act. The aim of this act was to incorporate rights that were available within the European Convention on Human Rights and fundamental freedoms into UK law. It has been said that this was one of the most significant changes to Britain's legal system since the Magna Carta (1215).
Because of this act, breaches of human rights can now be dealt within the United Kingdom by British courts. There is no need to go to the European Court of Human Rights that is based in Strasbourg. Judges in the UK do however have to take into account decisions made by them and have to interpret legislation so that it is compatible with it. Prior to the Act, hearing cases in Strasbourg was a slow process. Even the British courts were faster! Sometimes it would take up to two years before a case would be heard. A UK citizen can, however, still go as far as 'going to Strasbourg' (0.5% of cases do) or make an application, if they still feel that justice has not been done within the UK court structure. They can still seek a remedy here. This is also a very costly process. The HRA enables you to take action against a public authority, not another individual. Private organisations can also be classed as a public authority if they are performing duties of a public nature.
To define a victim under the act can be done in the following ways:
* An individual who has been affected or is at risk of being directly affected by something done by a public authority;
* An organisation, interest group or trade union, but only if it is itself a victim;
* A relative of a victim if the complaint is about the death of a victim;
* An individual or company who case could be heard by the European Court of Human Rights in Strasbourg. (www.courtservice.gov.uk)
Powers that are passed to the courts because of the act are in two forms, fault in primary legislation and fault in secondary legislation. If a case is bought and a piece of "primary legislation", i.e. an Act of Parliament, is found to be in conflict with the convention then the court will issue a "declaration of incompatibility". The law in question is not immediately taken off the statue books, although ministers are given an opportunity to amend or revoke the law in Parliament. If ministers fail to take such remedial action, the complainant could then take the case to the European Court, which has the authority to force a change in the law. Fault in secondary legislation is if an incompatibilty is found between the convention and rules and regulations drawn up by public bodies that are outside Parliament, health and safety regulations for example, then the court has the right to strike off the offending legislation, provided doing so does not conflict with any primary legislation.
In the United Kingdom there is no written constitution. Within it, individuals have been entitled to do whatever the law did not forbid. The doctrine of the sovereignty of Parliament, meant that Parliament was free to remove or control, individual liberties at any time, just by passing the legislation necessary. Malone v Metropolitan Police Commissioner (1979), gives a good example of how prior to the Human Rights Act, there was no right to privacy in English law and therefore individuals could have no complaint when their privacy was invaded, such as by the interception of their mail or ...
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In the United Kingdom there is no written constitution. Within it, individuals have been entitled to do whatever the law did not forbid. The doctrine of the sovereignty of Parliament, meant that Parliament was free to remove or control, individual liberties at any time, just by passing the legislation necessary. Malone v Metropolitan Police Commissioner (1979), gives a good example of how prior to the Human Rights Act, there was no right to privacy in English law and therefore individuals could have no complaint when their privacy was invaded, such as by the interception of their mail or the bugging of their telephones. As a result of this case, reactive legislation was put in place.
Although called the 'Human' Rights Act, the legislation also gives rights to companies. They may well have shareholders or directors, therefore giving them the 'right' also. The first case invoking the act was a case bought by appellants The Times newspaper in October 2000. It wanted a libel ruling that has been made against it overturned, with regard to the Lee Clegg murder case. They had criticised the solicitors dealing with this well-known case in material that was handed out at a press conference, and wanted to defend freedom of the press. The initial ruling was:
'McCartan Turkington Breen sued for libel and were awarded £145,000 after the courts ruled the press conference was not a "public meeting" and the journalist did not have "qualified privilege", which protects the press.' (www.bbc.co.uk)
It was Northern Ireland's Court of Appeal that dismissed an appeal by the newspaper, but did however reduce the damages to half the initial award. Lord Lester, QC for The Times told Lords Bingham, Steyn, Hoffmann, Cooke and Millett:
'..the new Act required the courts to construe existing law - including defamation law - subject to the basic rights of the individual...it was incompatible with the right to free expression for The Times to be found liable because of a restrictive interpretation of what constituted a public meeting.
A further appeal was bought to The House of Lords, which was allowed, and the case was remitted back to the High Court as no findings were made on the accuracy of the initial article. Authority's used on both issues in question at the appeal were Sharman v Merritt and Hatcher Limited (1916) and SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999].
Other and possibly more well-known cases, because of celebrity status, since the introduction of The Human Rights Act, are privacy cases, one involving supermodel Naomi Campbell (Campbell v MGN). She objected to being photographed and the pictures being published of her leaving a meeting that she was attending for help with her personal addiction. This case was successful second time around. Douglas v Hello! Limited [2000] was also highly publicised, the celebrity couple Michael Douglas and his new wife Catherine Zeta-Jones objected to OK! Magazine publishing unauthorised photographs of their recent marriage on the same day as Hello! Magazine who had paid £1 million pounds for them.
Frequently in discussion in recent times is the issue of same sex marriages. Article 12 of the Human Rights Act gives the right to marriage. This to many, is different from recognising the commitment of a same sex loving relationship and would not, at least at present, be interpreted as a 'marriage', even if it were legal. It has to be said that gay couples in society today could well feel like 'second class citizens' by not being given what they must feel is a 'natural' right.
In the times of terror since the September 11th atrocities, there has been much publicised opposition from citizens within certain communities in Britain, of the lack of human rights and other issues because of the Terrorism Act 2000. A major issue has been the government's policy to indefinitely detain non-UK citizens without any charge. In December 2004 the law lords ruled that this was in fact unlawful. Just over a year since the Human Rights Act came into force, the government opted out of Article 5 of the Convention on Human Rights. The government had to declare a state of emergency (although the then home secretary David Blunkett only declared a 'technical' emergency) to comply with the rules for opting out. Although detained, the 'prisoners' were in fact free to leave at any time - providing they left the UK. The main issues for many of the detainees was that many of them did not feel that they were free to go back to their home countries through fear of persecution or even death. So the usual principles of the Criminal Justice System and the 'reasonable' amount of suspicion needed for an arrest compared to a possible lifetimes detention under the Terrorism Act has now received a massive blow.
It has to be asked if things have gone too far, has the Human Rights Act began to protect the guilty and not the victim? It was questioned if the Home Secretary was correct as a politician to have the final say on the length of life sentences and if this had an affect on the right to a fair trial. This was such in the case of Jon Venables and Robert Thompson, well known as the 'child killers of a child' James Bulger. Thompson and Venables were released with new identities, on a life license in June 2001 after serving eight years of a ten year sentence. It was the European Court that sided with them and in 2003; the Criminal Justice Act later removed the powers from the Home Secretary.
When the state takes away a persons liberty by sentencing them to a custodial prison sentence, it has to take full responsibility for the protection of his/her human rights. The most fundamental section of the Human Rights Act that applies in this instance is the Right to Life. There are a large number of vulnerable people held in prisons and every year there are people that die in custody, some through suicide. The state has a duty to provide protection and take certain steps to try to prevent these deaths. Under Article 2, the government must carry out independent investigations into these deaths. There should also, it is argued, be a certain protection of privacy (the best that can be done in the confines of a prison) along with protection from violence or neglect. A basic human right here is also of course of the provision of healthcare, since many have medical/mental health issues on admission, plus addictions to drink and drugs. There have been calls for prisoners to have access to condoms, however unbelievable and unnecessary this may seem to many, realistically, it is necessary to attempt to stop the transmission of sexual diseases and the spread of HIV/AIDS.
Article 3, which covers freedom from inhumane or degrading treatment is often a subject of discussion. Prison overcrowding and conditions in certain units, such as segregation or juvenile units could well come into question under this article. Article 5 is the right to liberty. Prisoners for whom it is necessary to have regular reviews of their sentence/detention for parole purposes would use this part of the act. Article 8 could help prisoners that are held away from their family homes, they have a right to correspond and continue their family life where possible from the confines of prison. Prisoners may feel that their human rights are affected through conjugal visits not being allowed as is in other countries.
Article 9 covers religion, many prisons now provide for many different religious beliefs. Any prisoner that feels that they are treated differently from another with the same circumstances would be able to bring action under Article 14 of the act. This would include disability and race issues.
On the subject of a right to life, which is one of the articles within the Act, Abortion and the rights of the unborn child is very often a topic of discussion. Much of the debate is about if a woman's right to choose outweighs the rights of the unborn child. There are two groups that tend to support either argument, which are the pro-choice groups and pro-life groups, the names of which are self-explanatory. Abortion is legal within the United Kingdom, up to a gestation of 24 weeks. There is no time limit if there is risk to the woman's life or in foetal abnormalities. Some feel that it gives a woman choice and control of her own body. There are many with strong feelings about abortion and feel it is an inhumane act and question if it should be legal at all. Opposition to Abortion tends to be from people who are religious, for instance within the catholic religion. The 1967 Abortion Act does not extend to Northern Ireland where Abortion is still illegal.
On the 23rd August 2004, the Conservative Party mooted repealing the Human Rights Act as part of its manifesto for the run up to the next General Election. For the Labour Party, the Human Rights Act was seen as its most major achievement since coming to office. This move to implement the European Convention on Human Rights (ECHR) into UK law was no doubt going to prove controversial. The Conservative party feel that the act has given certain people rights that they should not be receiving, for example, giving convicted murderers access to pornography in prison and the rights of travellers to set up home in quaint English villages. It has also been said by David Davies, the current Shadow Home Secretary, that the amount of prisoners in Scotland serving a life sentence who were later awarded parole has grown by 40%, since the act was enforced. David Davies writing in The Spectator said he believed in:
'real human rights'...'once we had inherited English liberties, now we have incorporated European rights'
'the English idea - evolved through The Magna Carta (1215), The Petition of Rights (1628) and The Bill of Rights (1689), was of freedom held back from the state' (www.spectator.co.uk)
It is possible that given the opportunity, after a successful election campaign, that the Conservative party would not withdraw from the ECHR, surely making it immensely difficult to change the law.
Many civilised western countries and their people often take for granted their natural human rights. The Human Rights Act in the United Kingdom provides a legal basis for protecting certain rights, such as, the right to life, liberty, a fair hearing, private and family life, freedom of religion and expression and freedom from discrimination. The principles of human rights alone cannot relieve certain social issues, such as poverty, however it provides respect and dignity rather than the degradation that can accompany it. The rights provided for under the human rights act are guaranteed for everyone, although there are vulnerable people in our society who require this protection more, those with disabilities, the young and the elderly.
People who may be living within certain institutions due to their age, disability or mental state may be in particular need of this protection. Many of these people may not even be able to gain access to the services that can provide the help they need.
To conclude, the purpose of the human rights legislation is also to act as a preventative measure, not just to remedy issues after they have occurred. It sets a standard and structure in all of our lives, without many people even realising it, as citizens, employees and employers. It installs a culture of respect for people's human rights; in institutions where standards are not met they can be held accountable for it. Whilst in the main, the Human Rights Act does seem to provide a satisfactory amount of protection for the regular citizen, however, friction will, it seems, inevitably at times continue to cause problems where society feels that the wrong people are in receipt of it. It must be hard to find a fair balance between the rights of an individual and the wishes of a community.
