It achieves effective incorporation largely through the rule of statutory interpretation in section 3(1) which provides that, in so far as it is possible to do so, legislation must be given effect to in a way which is compatible with the convention rights.
This means that the Human Rights Act has potentially protected civil liberties, freedom of the individual, privacy and has had an effect on police powers, but can it be said that the Human Rights Act is a full proof way of protecting our rights and freedoms?
It is difficult to say one way or another, whether the Human Rights Act can protect everyone’s fundamental rights. For example, in the case of Campbell v The Sun news group (2001), it proved to be difficult to allow both parties involved their rights to privacy and freedom of speech. In this case, Miss Campbell sought an injunction against a newspaper to stop them running a story on her cocaine addiction as it infringed her basic right of privacy. The court ruled in her favour, and the Human Rights Act upheld her right to privacy. However, looking at the other side of the argument, the Human Rights Act also allows press freedom of speech, but in this case that was denied. Looking at this, it would be easy to say that the Human Rights Act cannot be used to protect everyone’s fundamental rights all of the time, as in some cases it is extremely difficult to do this. If we look at another case, Douglas, Zeta-Jones and Northern Shell Plc v Hello! Ltd 2001we can again see the short comings of the Human Rights Act in terms of protecting everyone’s right to privacy. In this case, the Court of Appeal refused to grant an injunction stopping Hello! Magazine publishing unauthorised photos of Catherine Zeta-Jones and Michael Douglas’s wedding. The court did not grant the injunction, therefore denying Catherine Zeta-Jones and Michael Douglas their right to privacy. However, again looking at the other side of the argument, the Human Rights Act did allow the press the freedom to publish the pictures.
This [privacy] seems to be treated as worthy of a less high degree of constitutional protection than at least freedom of expression and access to the courts, and is therefore more easily overridden.
These cases illustrate how the Human Rights Act has helped to protect privacy in some cases, and freedom of the press, but it has also helped to protect other rights of the individual.
In the case of Pretty v The United Kingdom, the defendant challenged many articles of the Convention, and shows how effective the Human Rights Act is in protecting the rights of the individuals in the U.K. Mrs Pretty wanted her husband to assist in her suicide as she was suffering from motor neurone disease. She fought in court for her husband not to be prosecuted, but the director of public prosecutions could not guarantee none prosecution for her husband, so the case was taken to the European Court of Human Rights in 2001. Mrs Pretty was claiming under articles two, three, eight, nine and fourteen. Although Mrs Pretty had a valid argument; the human rights act 1998 was not enough for her cause so she took it further and used the relevant articles to fight her claim and to make clear what she saw as the UK’s obligation. In this case, the problem was that the E.U convention conflicted with U.K law. Although it is legal for her to take her own life, it is illegal under U.K law for a person to assist her and those who are unable to carry out the act of suicide themselves. Her case was rejected by the court as they found there was no violation of the articles she was claiming under. This case demonstrates how ineffective the Human Rights act is where domestic U.K law conflicts with the Convention. It still means that some cases have to be heard outside Britain, meaning it is still a lengthy and costly process in some instances.
The Human Rights Act also has an effect on the way public bodies may operate. Article 6 of the convention states that it is unlawful for any public body to act in a way that is incompatible with a right laid out in the convention. This includes government, courts and the police. The act has a large impact on the way police must conduct their investigations and procedure. For example, article 6 provides that that ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’Article 6 also includes procedural safeguards, such as time, access to witnesses and information and legal representation and legal aid. Rowe and Davis V. U.K (2000) is a very significant case which demonstrates how article 6 can be used. In the defendant’s murder trial, the prosecution had withheld a number of pieces of evidence on P.I.I grounds. The European Convention on Human Rights found there had been a breech of article 6, the defendants fundamental right to a fair trial as the prosecution should divulge all evidence in their possession, both for and against the defendant. If we also look at the case of The Northern Ireland case of Magee NIECA (2001), this also shows how article 6 can be used. In this case, the defendant was held at Castlereagh Police Station. He had no lawyer present during his seventh interview, and he incriminated himself. The ECHR held that there had been a breach of article six, as there should have been a lawyer present as everyone under article 6 is required to have legal representation present in interviews. This case again shows another weakness of the Human Rights Act. Although it has protected an individuals rights, it has also freed what could be a potential criminal. In this sense, the Human Rights Act fails to protect society as a whole, as it allows criminals to use it as a loop hole, and remain free. For example, the killers of Jamie Bulger used the Human Rights to do this in T and V V. U.K (1999) by alleging they did not have a fair trial. The court agreed that this was the case, as the formality and ritual of the Crown Court ‘must have been intimidating to 11 year old children’. Again, an one side, the killers fundamental rights have been protected, but at what cost? Two killers were allowed to go free, how is that protecting everyone’s fundamental right to safety? In this respect, it is impossible to say that you can not allow criminals rights, but there should be an extent to which they can use them in cases where it is a certainty they have committed the crime.
In some respects, the Human Rights Act does protect the rights of individuals, but as we can see in the cases included in this assignment, it sometimes proves to be very difficult to protect both parties. For example, the Naomi Campbell case protects a persons right to privacy, but not the presses right to freedom of speech. The Human Rights Act also fails to protect society as a whole. By allowing criminals, in cases where it is a certainty that the accused have committed the crime, to use this act to free themselves, the act fails to give individuals the right to safety, and in this way the act fails on a grand scale. Yes, in some cases the Human Rights act does protect the rights and freedoms of the individual, whether it be at the cost of someone else’s rights or not, and it succeeds in doing this, but it fails to give rights to society as a whole. In this respect, the act fails. Yes, the Human Rights Act may have been brought into existence to protect the rights of individuals, but with it needed to come some sense of responsibility for the consequences it would have. If it allows criminals to walk free, there needs to be a system in place to put limitations on this.
Bibliography.
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Published by Sweet and Maxwell, 2001.
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Published by Cavendish Publishing, 2002
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Published by Sweet and Maxwell, 2002.
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Constitutional and Administrative Law, Nutshells, Sixth edition, Greer Hogan.
General Principles of Constitutional and Administrative Law, Fourth edition, John Alder, page 430.
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English Legal System, Nutshells, Fifth edition, Penny Derbyshire.
