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The Human Rights Act 1998 is the Labour party incorporation of the European Convention on Human Rights into United Kingdom law.1The principle aim of the 1998 Act was to directly enforce the substantive rights in the conventions rights in all the domestic Courts. Meaning, a British citizen is entitled to argue breaches of his/her rights under the Convention in any Courts in the UK, instead of having to go to the European Court of Human Rights in Strasbourg.2 It is argued that the Human Rights Act 1998 was one of the most illustrious statues the Parliament has passed in many years, it is important therefore, to assess the impact of the Act on the protection of individual rights in the UK.
Generally, it is believed and certainly true that until 1998; the protection of individual rights and civil liberties in UK was relatively poor and unsophisticated, however, it would be wrong to assume that before the Human Rights Act 1998; the law and the people in UK were not affected by the European convention and that individual’s right were violated. It is surely certain that law in United Kingdom did not formally recognise human rights but it has traditional civil liberties, dating back to the Magna Carta 1215; which relies on a number of precedents and Act of Parliament as UK has an unwritten constitution.3 It recognized individual rights to courts and a right to a fair trial, nevertheless, this mechanism has provided a little protection of any rights because, in general citizens in UK had the right to do anything as long as the law did not prohibited it.4 To help to illustrate this point is the Firearms (Amendment) Act 1997.5 Prior to the Dunblane massacre 1996; people had been allowed to own a registered gun. In consequences of the massacre, the government has passed a new law that ban a large majority of handguns, this shows that by passing the Firearms Act, the right of the gun owners to have guns has been removed. Thereby, it could be argued that in UK rather than having right, people have had the freedom to do anything that the government has not delineated as unlawful.
Besides the problem of the parliamentary sovereignty which shows that there is no area of law where the parliament cannot legislate and by some means interfere with human rights. The traditional system suffered from further difficulty, mainly the requirement to “exhaust all domestic remedies” before UK citizens can take their cases in the Strasbourg Court.6 For example, in a case where a person feels that the UK has breached his/her individual human rights, will have to go through all the UK Courts before being allowed to take his/her to European Court of Human Rights in Strasbourg. It is evident that this procedure is time consuming and cost a lot of money, as stated in the white paper “Rights Brought Home: The Human Rights Act Bill: It takes on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted; and it costs an average of £30,000.”7Over the years, many cases have shown that the UK violated Convention rights. This can be illustrated in the subsequent example. In Malone v Metropolitan Police Commissioner (No. 2)  Ch 344, the court refused to recognised the fact that Mr Malone’s telephone had been tapped by the police without a legal authority was an alleged breach of his right to privacy under the Article 8 of the European Convention on Human Rights.8 As result of the Court judgement, the plaintiff took his case to the European Court of human right, Malone v United Kingdom  7 EHRR and argued his case under the Article 8, right to private life.9 The European court of Human Rights held that the UK practice of interception did breach Article 8.
For many years and in various cases as seen in the example above, the European Courts of Human Rights has found that the UK has infringed individuals’ human rights. The 1998 Act was therefore, passed in the context of improving the system of human rights protection in the UK and ensures that such rights are out of reach of the government. In contrast of the traditional system, the Human Rights Act 1998 which came fully in to force in 2000; guarantees the individual citizen with a simpler process on the basis that people can now enforce Convention rights in the UK courts, which were before reserved for the European Court of Human Rights.10 However, one individual cannot enforce Convention rights against another individual, it can only be enforced against the public authority, which include for example government departments, local authorities, courts, hospital and schools. As stated in Section 6 (1) of the Human Rights Act 1998, “it is unlawful for a public authority to act in a way which is incompatible with a Convention rights”.
In addition, under the Section 2 of the Act, judges in any courts in UK are allowed to consider case law of the European Court of Human Rights when deciding on an individual’s Convention rights cases.11 This helps the courts to determine cases in a manner which is more related to that of the Strasbourg court and provide individuals with a greater level of protection. Thus, the passing of the Human Rights Act 1998 has put in place a far more effective role of court in upholding fundamental human rights, which could be generally consider as one of the most significant aspects of the Act. The Human Rights Act 1998 section 3 (1) stated: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” .12 Under this section, the court is given the ability to interpret UK statute in a friendly manner with the Convention rights when possible to do so. Whereas in the previous situation, the courts were only allowed to apply an Act of Parliament even if it violates the Convention rights.
In cases where the courts consider that it is not possible to interpret legislation in a way other than in conflict with the Convention rights, under the section 4 of the 1998 Act, the courts have the power to make a “declaration of incompatibility”. This is a significant development of judicial role, as it can publicly expose laws that are inconsistency with the Convention rights.13 However, it must be stressed that this increase of powers for the courts does not threaten the doctrine of parliamentary sovereignty because the government can still refuse to amend the relevant law and remove the inconsistency.14
On a number of occasions, the courts have been faced with cases concerning incompatibility of domestic statute with European Convention on Human Rights. For example in R v Mental Health Tribunal, ex parte H  3 WLR 512, the court of Appeal held that the requirement imposed on the claimant to show proof that his conditions for detention no longer needed was not compatible with Article 5 of the European Convention. Thus, the court made a declaration of incompatibility in relation to section 72 and 73 of the Mental Health Act 1983.14 Furthermore, in Bellinger v Bellinger  2 AC 467, the House of Lords rejected Mrs Bellinger’s claims on the validity of the marriage ceremony.15 Alternatively, the House of Lords held that section 11(c) of the Matrimonial Causes Act 1973 was incompatible with Article 8 of European Convention and granted a declaration of incompatibility, most notably because the European Court of Human Rights’ ruling in the case of Goodwin v United Kingdom  35 EHRR 18 clearly show that the 1973 Act is in conflict with the convention.16
In Conclusion, there is no doubt that the passing of the Human Rights Act 1998 has provided a more consistent mechanism of individual rights protection in UK. It has created a greater role for the courts in order to redress the deficiencies of the former system. Before 1998, successive governments in UK had refused to enforce the convention into domestic law in UK fearing that it would give the judiciary too much power. As William Hague stated “it would replace the rule of law with the rule of lawyers”.18There was also a contention that the courts would face a flood of cases because a lot of people would bring cases which raise an individual’s Conventions rights.19 In general, I think none of these situations above have in fact materialised, because although, the courts have used their news powers on a number of occasions, there is no evidence that since the Human Rights Act 1998 came into force, the judicial has gone beyond the principles of the Conventions in order to provide justice to individuals who have their rights infringed.
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