Human Rights Act 1998 is a constitutional act

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The enactment of the Human Rights Act 1998 (HRA) and the incorporation of European Convention on Human Rights (ECHR) in United Kingdom law marked a turning point in United Kingdom’s legal and constitutional history. This new epoch has brought about greater domestic respect for human rights under the rule of law, resulting in significant changes in public law, both in substance and in the conduct of judicial review proceedings. This essay question is concerned about the consequent impacts of this statute upon British constitution. In order to approach this question, I shall basically focus on three areas; the constitution of United Kingdom in relation with the unwritten constitution, the Human Rights Act 1998 and the consequences of this Act on the English legal system.

In modern democratic nations the constitution is often to be found in a written and codified form. The United Kingdom is very unusual among those countries in not having such constitution. The British constitution is neither written nor codified in any single document; which is regarded as unwritten constitution. However, when a nation-state possessed a written constitution, the constitutional law of such countries should be obvious and equitably clear. The law making and enforcing bodies of such countries ‘must’ have to behave in accordance with their constitution. There is no chance whatsoever, to override the constitution. For example, in the United States (US) where the constitution is written to last, and thus it is very difficult to alter any part of it. Nevertheless, all legislative bodies of United States ‘must’ have to comply with the US constitution. As a result, the parliament of United States does not have so much power to impose such law which is incompatible with the constitution. Even if they do so, the American judiciary does have sufficient power to review any decision made by any section of government and declare it as unconstitutional.   On the other hand, where the constitution is unwritten, the circumstance is slightly different. Therefore, in United Kingdom the precious substance of its constitutional law became ambiguous and subject to debate. The constitutional lawyers of United Kingdom thus need to consider different sources of British constitution which is constructed through hundreds of years.

The constitution of the United Kingdom is actually based on Acts of Parliaments (statutes), judicial reviews and some political conventions. In addition, it (the constitution) is guided by three fundamental principles which are the separation of powers, the supremacy of parliament and the rule of law. However, the absence of any written constitutional framework in United Kingdom affects British constitutional law.

In terms of human rights protection, Britain is unusual among other modern democratic states in having neither a Bill of Rights. However, most democratic countries have a written Bill of Rights, which lays down the rights, which by law can be enjoyed by her citizen. These protected rights have to be respected by all public and private individuals; unless the Bill itself allows otherwise. On the contrary, citizens’ rights in the United Kingdom described as residual. Which means the rights and freedoms for the British people is considered to be protected by a presumption; that they are free to do whatever is not precisely prohibited by existing law. The present situation within the United Kingdom is that, there are three safe guards exist to protect individual rights. These consists of residual rights, the European Convention on Human Rights and the Human Rights Act 1998 (HRA).

The protection of human rights and civil liberties is one of the principles functions for any legal systems around the world. By passing the Human Rights Act 1998, these rights were brought home back by labor government. A significant change in the British position was made by the introduction of the Act, which appears to raise a number of legal and constitutional questions (as we shall see). The implementation of the Act is considered as an important step on the way towards meeting the need for greater protection for human rights. According to Lord Chancellor it would have,

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“a profound and beneficial effect on our system of law and government and will develop over the years a strong culture of human rights”

Nonetheless, its introduction in domestic legislation has affected many legal areas. It has been, therefore, regarded as one of the most substantial changes to Britain’s legal system since the Magna Carta (1215). It opened the door for protecting the essential rights and civil liberties of the British people by enacting (partially) the European Convention on Human Rights a part of English legal system. The Human Rights Act 1998, however, does not enact new laws to ...

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