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Published: Fri, 02 Feb 2018
European Court of Human Rights Act
HUMAN RIGHT ACT 1988
The Human Rights Act 1998 is a United Kingdom Act of Parliament which received Royal Assent on November 9, 1998, and came into force on October 1, 2000. Its aim is to incorporate into UK law the rights contained in the European Convention on Human Rights. The Act makes available in UK courts a remedy for breach of a Convention right, without the need to go to European Court of Human Rights, inStrasbourg.
In particular, the Act makes it illegal for any public body to act in a way which is incompatible with the Convention. It also requires UK judges take account of decisions of the Strasbourg court, and to interpret legislation, as far as possible, in a way which is compatible with the Convention. However, if it is not possible to interpret an Act of Parliament so as to make it compatible with the Convention, the judges are not allowed to override it.. This declaration does not affect the validity of the Act of Parliament: in that way, the Human Rights Act seeks to maintain the principle of Parliamentary Sovereignty . http://www.wordiq.com/definition/Human_Rights_Act_1998
The Convention on Human Rights contains twelve fundamental rights and sovereignties. A further five are added by the first and sixth practices.
Some moralities are ‘unqualified rights’ which means they are absolute. There is no need for the Court to consider whether the action of the body making the decision was reasonable. It only has to look at whether a Convention Right was violated
Some of the truths are qualified rights and these only apply so long as there is no conflict with some other, equally weighty, rights or interests.
Some concord moralities are ‘unqualified rights’ which means they are utter. There is no need for the Court to ruminate whether the action of the body making the verdict was reasonable. It only has to look at whether a Concord Right was debased and they are as follows
Article 2 – Right to life
Article 3 – Prohibition of torture
Article 4 – Prohibition of slavery
Article 5 – Right to liberty
Article 6 – Right to a fair trial
Article 7 – No punishment without law
Article 12 – Right to marry
Article 14 – Prohibition of discrimination
Article 2 – Right to education
Article 3 – Right to free election
Article 1 – Abolition of the death penalty
Some of the rights are qualified rights and these only relate so long as there is no clash with some other, likewise important, truths or interests.
Article 8 – Right to respect for private and family life
Article 9 – Freedom of thought, conscience and Religion
Article 10 – Freedom of expression
Article 11 – Freedom of assembly and association
Article 1 – Protection of property
Article 2 Death penalty in time of war
ADVANTAGES OF HUMAN RIGHT ACT 1998
The Human Rights Act 1998 (henceforth referred to as ‘the Act’) is a highly significant piece of legislation which entered into force on 2nd October 2000. It combines into UK law the various rights and freedoms contained within the European Convention on Human Rights and secures a wide range of civil rights and freedoms of the individual against interference by the State. The result of this is that an individual is now able to seek legal redress in a court in England or Wales.. Yet under the Act, any UK citizen is now able to enforce their rights in the domestic courts of England and Wales. A limitation occurs where UK law conflicts with the Convention; in such circumstances, the individual will be obliged to make the application to Strasbourg, as was required prior to the passing of the Act.
The Act applies to public authorities, along with those bodies carrying out public functions, and provides that they must act in a manner which is compatible with the Convention . If an individual feels that this Convention right has been breached by such a public authority, he may be entitled to challenge this by the process of judicial review .
Under Article 2 of the Convention (and implemented by the Act), everyone’s right to life shall be protected by law. This means that no citizen shall be deprived of his life intentionally, except in the situation where death results from the sentence of a court in faithfulness to the law. Examples of situations in which Article 2 issues may arise are those in relation to: a) hospitals: hospitals are under a duty to take positive steps to secure a patient’s right to life (and justifying the rebuttal of life-saving treatment to a patient raises this issue, as well as potential issues under Article 3); b) unborn children: under current UK law, an unborn foetus has no personality and hence no separate legal rights from its mother (and therefore arguments may arise under Article 2 that a foetus should henceforth be protected); c) death threats: issues under this Article may arise where an individual is receiving death threats (it may be argued that the government has an obligation to ensure sufficient protection for him); and d) the right to die: the courts ruled in the case of Diane Pretty that Article 2 cannot be relied upon to ensure the right to die.
Article 3 provides the right of protection from torture, inhuman or degrading treatment or punishment. Articles provide for no unique circumstances in which a public body can interfere and are hence referred to as ‘absolute’ rights.
Article 5 refers to the liberty of an individual and provides that every individual has the right to liberty and security of their person. There are extraordinary positions in which liberty may lawfully be taken away .A auxiliary right ascends under Article 6, relating to access to justice and a fair trial; this provides that ‘in determination of his civil rights and commitments or of any criminal charge against him, every individual has the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. This right may not apply in exceptional circumstances (e.g. in times of war or public emergency) and mental health review tribunals have been known to be excluded from this definition these rights are those individuals charged with a criminal offence shall be presumed innocent until proven guilty; they must be informed punctually, with detail of the circumstances upon being charged; they must have adequate time and facilities to prepare a defence, along with having access to legal representation should they so require it; and they must have the right to speak and scan any watchers, with the aid of an interpreter should a potential language barrier raise difficulties. A further point to note under this Article is that, unless the above derogations apply, retrospective laws cannot be introduced which result in the felonious liability of an individual for acts which did not so impose danger at the time of their contract.
Article 8 grants every individual with the right to respect for their private and family life. There are only limited circumstances in which they can interfere in a society these include the grounds of national security, public safety, the prevention of disorder or crime or for the protection of ‘health and morals’. Wide construal has been given in relation to the exercise of this right; a balance of the interests of a democratic society must be contemplated against the rights of each individual.
Freedom of thought, morality and religion is granted by Article 9. Similar margins exist as for those relating to Article 8.
Each individual is given freedom of thought of expression under Article 10. This includes the sovereignty to hold approaches and receive/disclose information without snooping by any public power. Once again, the above allowances relating to Article 8 and 9 also apply here.
Article 14 relates to perception. It provides that the specific rights and freedoms contained within the Convention must not be affected by discrimination on a range of grounds (including that of sex, race, colour, language and religion). This Article will therefore only be important in relation to a claim that another Article has been breached and does not stand alone as a right per se.
As declared heretofore, the Act has established the Convention as part of national law. The rights and freedoms that it secures provide citizens with a range of positive entitlements to asset in the course of a dispute with any public authority. Petitioners will not have to prove to the court that a disputed decision was so irrational that no rational public authority could have taken it ; this is known as the ‘Wednesbury unreasonableness’ test. Provided that a litigant can show that he was personally affected by the action of decision of the public body, it is sufficient to simply establish a breach of a Treaty right which, according to the court, was overstepped without lawful justification.
Any court or tribunal, in deciding a matter relating to a Resolution right, must take into consideration previously established precedents, be they judgements, decisions, declarations and opinions made or given by the European Commission and Court of Human Rights and the Committee of Ministers of the Council of Europe. Hence, such precedents will be highly leading, though not binding, on national courts in England and Wales.
One of the main aims of the Act has been to establish a culture of rights and freedoms arising from a shared recognition of what is inherently right and wrong. A major change resulting from the passing of this Act is that, whereas previously, a national court would only look to the Convention for guidance in exceptional circumstances, it is now an onus of national courts to respect and secure for inhabitants the rights established in the Treaty.
It is also to be hoped that, as an indirect result of the Act, an increased level of assurance by nationals in public builds and authorities will be seen. Such joint and established necessary values in relation to human rights will be certain to promote a grander unity amongst society since such rights must, henceforth, be a part of all policy making
IMPACT ON JUDICIARY REVIEWS
This realistic research study drew much from the policies and experience attained in the course of the previous studies, and built on the important links established by PLP with the Secretarial Court, academics and experts. Provides a detailed break of the number of civil judicial journal claims issued and contracted approval in each category within the research period. It cogitates the numbers of Human Rights Act claims in judicial review accounts and compares the outcome patterns of HRA and non-HRA cases, concluding that there is little evidence to suggest that the introduction of the HRA has led to a significant increase in the number of claims brought, despite the steady year-on-year rise in the number of claims issued in the Administrative Court. It traditional that the HRA was cited in just under half of all civil claims between January and June 2002, although this varied considerably according to the subject matter of the application. It advance found that, in the bulk of cases, the exclusion of human rights arguments did not add significantly to the case or to the claimant’s prospects of success. The study have been usually cited in speculative periodicals in the UK and abroad
The key and prevailing question is whether the Human Rights Act has inhibited the realization of the Government’s objectives on crime and terrorism and led to the public being exposed to additional and unnecessary risk. Section 2 of this review shows that the effect of the Act upon
domestic UK law has been far from negligible, and has involved the courts in a much more active and intense inquiry of the Expensive than they had been prerequisite to do earlier to October 2000. The courts have also everyday this scrutiny to major bill and, in some high pro”le cases, have declared Acts of Parliament to be incompatible with the Convention rights under section 4 of the Act. But – and as the Avowals of Illogicality themselves illustrate – the public policy issues which arise here derive not from the effect of the Human Rights Act in UK law, but from the UK’s obligations under the European Convention on Human Rights itself – to which the Government and all the major political parties remain unswerving. Indeed, the evidence is that, if anything, the UK Government tends to get better outcomes than previously in Strasbourg through having the Act, because these issues are resolved by UK judges here in a manner which has gained the consent and respect of the European Court of Human Rights. The pooled view of the retreat assistances is that, although there are signi”cant resource implications in servicing the structures set up to deal with perilous kidnapper suspects, these result not from the Human Rights Act, but from decisions of the Strasbourg Court in cases such as Chahal. Nor do they believe that the courts’ attitude to Article 8 has caused any particular problem, since interferences with the right to privacy are tolerable in the interests of national security where they are necessary and right.
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