Effect of The Human Rights Act 1998

Effect of The piece Rights crop 1998Section 3(1) of the Human Rights flake 1998 provides that So far as it is possible todo so, primary legislation and qualified legislation must be read and given effect ina way which is matched with the design rights. Whilst this does not affectthe validity, continuing procedure or enforcement of any contradictory primarylegislation, or affect the validity, continuing operation or enforcement of anyincompatible subordinate legislation, national legislation must be completelyincapable of being compatible with the European Convention on Human Rights forthe Courts in the UK to deliver a declaration of incompatibility, rather than to go out the legislation in favour of the party relying upon a Convention right.Regarding the recital of the Convention rights, subdivision 2(1) of the HumanRights dress 1998 states A court or tribunal determining a interrogate which has arisenin connection with a Convention right must take into account any ( a) judgment, finish, declaration or advisory opinion of the European Court of Human Rights, (b)opinion of the Commission given in a report adopted under Article 31 of theConvention, (c) decision of the Commission in connection with Article 26 or 27(2) ofthe Convention, or (d) decision of the Committee of Ministers taken under Article 46of the Convention, whenever made or given, so far as, in the opinion of the court ortribunal, it is relevant to the proceedings in which that question has arisen. The Courthas held that, when scrutinizing executive decisions and determining their compliencewith the Human Rights passage, section 2 of this Act compels them to take into accountthe jurisprudence of the European Court of Human Rights. However, it has beenmade clear that The courts argon not bound by the decisions of the European Court.This was confirmed in the fictional character of Boyd v The Army Prosecuting Authority.However, in the case of R v Secretary of the State for the Home Dep artment, a caseconcerning an alledged fault of Article 8 of the ECHR it was held, in reliance onthe cases of Campbell v United Kingdom and R. v Secretary of the State for theHome Department (Ex p. Leech), that when assessing the validity of an executiveaction, the court must rule on the proportionality of the executive decision in question.Article 8(2) of the ECHR states There shall be no interference by a public authoritywith the exercise of this right except such as is in accordance with the law and isnecessary in a democratic companionship in the interests of national security, public safety orthe economic well-being of the country, for the prevention of disorder or crime, forthe security measures of health or morals, or for the protection of the rights and freedoms ofothers. The Queens Bench held that where an executive decision sought toinfringe Article 8(1) of the ECHR, that an investigation into the proportionality of thatdecision is required by virtue of Article 8(2) of t hat Convention.From these new-fangled case decisions it is immediately clear that the Human Rights Act1998 has had a major impact on the pre-existing public law framework of the UnitedKingdom. The Courts be bound to interpret national legislation in accordance withthe rights contained in the ECHR, even where this means that national legislation hasto be interpreted beyond its unfeigned or purposive backdrop, and the Courts have showincreasing willingness to be influenced by European jurisprudence when interpretingthe Convention. On top of this, it seems that the case of R v Secretary of the State forthe Home Department has introduced proportionality as a new grounds forcommencing a judicial review of an exectuive decision.To this extent, the Human Rights Act 1998 must be considered a tenet of the temperament of the United Kingdom, at least to the extent that it impacts upon thescope of the legitimate powers of the executive. However, that being said, section 3(2)of the Human Rig hts Act and the interpretation of this section by the House of Lordsin the case of R v A (No.2) does suggest that where the legislative enact legislationwhich purports to expressly limit the scope of a Convention right, the Courts are notentitled to rules in favour of a claimant, by reinterpreting that provision.Let us now ask ourselves an important question For an Act to be integral surelyit must be the case that the legislature cannot bypass its provisions, while it remains inforce, simply by indicating its life to do so, or acknowledging that it does so?Let us therefore turn to examine how the Courts deal with cases where legislation iscompletely incompatible with the rights conferred under the ECHR, or where thepolitical science have acknowledged that a new Bill is incompatible with the ECHRIn regards to incompatible legislation, section 4(2) of the Human Rights Act 1998states If the court is satisfied that a provision is incompatible with a Conventionright, it may make a decl aration of that incompatibility. Section 4(4) of the Act goeson to provide that If the court is satisfied- (a) that the provision is incompatiblewith a Convention right, and (b) that (disregarding any possibility of revocation) theprimary legislation concerned prevents removal of the incompatibility, it may make adeclaration of that incompatibility. The effect of such a declaration, however, isneither to go to sleep that legislation invalid and ineffective, nor to provide the parties inthe case with a form of redress, but rather to alert the executive that the legislation inquestion is incompatibe. notwithstanding the fact that the Courts have made it clear that adeclaration of incompatibility is a last resort, in order to argue that the HumanRights Act 1998 is a constitutional enactment, it must be shown that where thelegislative have introduced legislation which is incompatible with its provisions, thatthey have acted beyond their constitutional powers.In regards to statements o f compatibility, it is clear that the legislature are legallyentitled to enact a Bill without such a statement, as per s19(1)(b) of the 1998 Act. Anexample of such an Act is the Sexual Offences Act 2005. This must be deemed toundermine the UKs commitment to abiding by the rights enshrined in the ECHR.Earlier in this essay we have asked the question For an Act to be constitutional surelyit must be the case that the legislature cannot bypass its provisions, while it remains inforce, simply by indicating its intent to do so, or acknowledging that it does so? In shadowy of the fact that the Act does not impose any duty of action on the executive toamend incompatible legislation, nor to make sure legislation is compatible before it isenacted, it cannot be said to undermine the constitutional nature of this Act becausethe legislature are not acting outside of the scope of their powers in the legislation.If this stock is correct, then we must ask ourselves what characteristics of theHuman Rights Act 1998 suggests that it has found a place at the flavor of theconstitution of the United Kingdom?In the case of Thoburn v Sunderland City Council, Lord Justice Laws defined aconstitutional statute in the following terms In my opinion a constitutional statuteis one which (a) conditions the legal relationship between citizen and State in somegeneral, overarching manner, or (b) enlarges or diminishes the scope of what wewould now regard as innate constitutional rights. (a) and (b) are of necessityclosely related it is difficult to think of an instance of (a) that is not also an instanceof (b).We have already seen how the Courts have employ the Act to give significant force tothe ECHR, interpreting legislation widely to give effect to the Convention rights,allowing decisions by public bodies to be challenged for being a disproportionatebreach of Convention rights and only issuing declarations of incompatibility as a lastresort. These features of the Human Rights Act 1998 an d the way it has been appliedby the Courts surely satisfies Lord Justice Laws definition.This supports the contention that the Human Rights Act 1998 is part of theconstitution of the UK, but does not confirm whether it has truly found a place at the kernel of the constitution. Let us now look at new-fashioned political developments that serveto undermine this assertionIn England there is currently oftentimes talk about the possibility of repealing the HumanRights Act. For example, in 2006 David Cameron made a public statement that theConservatives would scrap, reform or replace the Human Rights Act unless the government could reach a memorandum of understanding to enable foreigncriminals to be deported to their countries of origin. Guardian, May 12 2006.Likewise, a recent Review of the Implementation of the Human Rights Act, stated itis worth considering briefly an option which has been subject to recent comment. Thiswould be the option of repealing the Human Rights Act and enact ing a separate set offundamental rights which would not, in law, be connected to the EuropeanConvention on Human Rights. The suggestion is that these rights could be given somesort of entrenched or superior circumstance in our constitution. DCA, 2006, p5.These sources strongly imply that the Human Rights Act 1998 has not found a placein the heart of our constitution, despite there being myopic doubt about its constitutionalnature. In the final section of this paper, let us turn our attention to the place of theHuman Rights Act 1998 in the constitution of Scotland, and its prospects for thefuture in this devolved jurisdictionIn Scotland, the purposes of the Human Rights Act 1998 were given greater force bythe introduction of the Scotland Act 1998. Section 29 of this Act states (1) An Actof the Scottish Parliament is not law so far as any provision of the Act is outside thelegislative competence of the Parliament. (2) A provision is outside that competenceso far as any of the follow ing paragraphs apply (d) it is incompatible with any ofthe Convention rights or with Community law. This goes oftentimes further than theHuman Rights Act 1998 which allows UK Parliament to enact incompatibleprovisions as long as an assessment has been made in accordence with s19(1)(b) ofthe Act.Coupled with the recent enactment of the Scottish Commission for Human Rights Act2006, which established the Scottish Commission for Human Rights, it seems clearthat the ECHR has found a central place in the constitution of the devolvedjurisdiction of Scotland. However, in response to the statement at the top of thispaper, we can hardly say that these developments put the Human Rights Act at theheart of the constitution of the United Kingdom after all, these developments do notpertain to the Human Rights Act 1998, except in so far as this Act is used to definethe Convention rights which are to be adhered to by the Scottish executive.ConclusionIn conclusion, whilst the Human Risghts Act 1998 can certainly be exposit as aconstitution enactment, recent political developments in the UK which suggest thatthis Act might soon be repealed undermine the contention that the 1998 is at theheart of the constitution of the United Kingdom.In Scotland, the Human Rights Act 1998 can only be said to be at the heart of theconstitution to the extent that this Act is referred to by the Scotland Act 1998, an Actwhich goes much further in granting legal protection to scotish citizens for breachesof Convention rights than the 1998 Act.