The Human Rights Act 1998 - Essay Example

Consider whether or not the Human Rights Act 1998 can properly be described as achieving a revolution in the better protection of human I would like to begin my essay with an interesting scenario from the legendary book, "Alice in the Wonderland". White rabbit: Your Majesty, members of the jury, loyal subjects... and the King... the prisoner at the bar stands accused of enticing Her Majesty, the Queen of Hearts, into a game of croquet, thereby and with malice aforethought, molesting, tormenting, and otherwise annoying our beloved... Queen of Hearts: Never mind all that! Get to the part where I lose my temper. White Rabbit: ...thereby causing the Queen to lose her temper. (Lewis Carroll) Once the Osmosis of the above scenario clears in the reader's mind it is possible to discern a pattern where as the Queen of Hearts (later rhetorically referred to as "nothing-but a pack of Cards" by Alice) is equivalent to the Modern Executive with its unfettered discretion to use and abuse its powers, lock up and detain people at its own will, apply legislation in an oppressive manner and the list goes on. Who will then protect the ordinary citizen from suffering from the wrath of the angry Queen of Hearts (the executive) and give them a chance to have their cases reconsidered and to achieve procedural and substantive justice Our saviour is of course the remedy of Judicial Review through the Human Rights Act 1998 which has become more of an eye sore to the Executive in the yester decades as the Judiciary continues to "check and balance" an unruly, highly political executive through the not so recent Human Rights Act 1998 which seems to have absorbed in the veins of judicial activism and recent case law with much ease. The promulgation of the Human Rights Act 1998 was one giant step towards the process of judicial review of administrative action in the United Kingdom in the context of its constitutional significance. Judicial review has shifted the growing balance of power which is shifting in the favour of the courts in their "Judicial Activism" since the 1960's which has often alarmed the members of the executive with many academic commentators defending this as "inevitable" in the face of the expanding role of the State1 and increasingly draconian legislation (especially in the area of Immigration and Terrorism law post 9/11 and 7/7).Prior to the Human Rights Act 1998 the English approach to a systematisation of judicial review was remedial based and thus similar to the development of the prerogative writs2 which developed as personal requests by an individual to the King for the redressal of a wrong suffered by another individual.3The UK has no separate system of administrative courts (and the concept never found favour with the system either eversince the abolition of infamous prerogative Star Chamber).Thus the present administrative review system of England can be described as a body that combines both a substantive body of law containing grounds of review and a large number of administrative tribunals dealing with statutory appeals from decisions of public bodies. Thus it is possible to see that the British Constitution is largely unwritten to date with the exception of the new review powers for the courts introduced by the Human Rights Act 1998. The Act goes a long way in securing the rights and freedoms of the British Citizens in a many ways.In particular the recently promulgated Human Rights Act 1998 makes it unlawful for a public authority to act in a way which is incompatible with a Convention right(Section 6(2)) would certainly subscribe to the Pure Ultra Vires view discussed above. This Act provides a "statutory basis" to judicial review of administrative action. Moreover the Human rights Act 1998 has played a significant large role in strengthening the judiciary's stance against unwarranted access by the public authorities and as well as helping them declare any UK law incompatible with the Human Rights Act 1998.However even though the role of the Act has been lauded by many circles in the civil and judicial society some academics have rightly pointed out that they are sceptical to its mechanisms of the locus standi for review being available solely to the victim of the violation by the public authority.4 Miles (2000) has criticised the Act thus, "All is not well when it comes to the protection afforded by these laws either. The Human Rights Act enables applicants in judicial review and other legal proceedings to complain that a public authority has violated a Convention right, but only if they are "victims" of that violation. The victim standing test was adopted from the Strasbourg institutions without any consideration being given in Parliament to the appropriateness of such a test in the domestic context. .. the suitability of a particular standing rule for a given jurisdiction cannot properly be evaluated until a theory explaining the juristic function of standing rules has been identified and articulated". Even then the Act has done little to appease the executive as it is increasingly feeling the pressure of this new found judicial activism and is finding it hard to shield itself through the use of the doctrine of "Sovereignty of Parliament".An interesting example is the recent Jackson case 5 which involved a challenge to the validity of the Hunting Act 2004, which makes it an offence to hunt most wild mammals with dogs. There was a marked tension between the House of Commons and the House of Lords here as the act had been passed without the approval of the House of Lords.6.This decision has been said to be a landmark in the history of Judicial review as commentators are already suggesting that a shift in the equation between parliamentary sovereignty and the rule of law7 and it is being debated whether the courts (post the Human Rights Act 1998) would possess the authority to review and even to set aside a parliamentary statute which offended the rule of law or for that matter any other fundamental principle integral to a contemporary conception of constitutional democracy..8 A similar trend is emerging with other pieces of legislation post 9/11 and 7/7 in the form of the Regulation of Investigatory Powers (Communications Data) Order 20039 , Regulation of Investigatory Powers Act 2000 and the Anti-Terrorism Act 2001 which make privacy and civil liberties of terror suspects a lost concept as the members of the executive are allowed a free hand in crossing all boundaries in the investigation of terrorism and money laundering. Alarmingly these pieces of legislation are also notorious for their clever circumvention of the role of the judiciary in curtailing any appeal to the judicial platforms regarding these unfair practices which are now mandated by the writ of the law.It is becoming more and more difficult to hold Human Rights Act 1998 as a sword against these cleverly drafted statutes which take away the basic fundamental rights of the individuals. It becomes clear however as one is able to sift through a wealth of recent case law ,that the courts have fiercely used the Human Rights Act 1998 in their struggle to compromise any chances of a better relationship with the executive in an effort to uphold the constitutional guarantees available to the General Public10.In 2002 the House of Lords ruled in Anderson11 that under the Human Rights Act 1998 and with respect to the doctrine of the rule of law the Home Secretary's traditional right of setting the tariff for prisoners convicted of murder could be no longer allowed to continue as this was an example of an arbitrary and unchecked exercise of power by a member of the executive In the case of Belmarsh12 which is also an important case for judicial review an over whelming majority of the House of Lords decided that the indefinite detention of foreigners, on the ground of terrorism suspicion was a breach of the European Convention on Human Rights (and therefore a violation of the ACT).Another example to see the law as it has developed in the area of unfairly obtained evidence against defendants. If example of the above mentioned attitude is the House of Lords case of R v Khan13 where the accused appealed on the basis that the evidence obtained against him by police officers acting without a warrant, violated his right to privacy protected by Article 8 of the European Convention on Human Rights (ECHR). His appeal was not allowed and the House of Lords said that although evidence obtained in circumstances involving an apparent breach of Privacy under the Article 8 may invoke the protection under the section 78 power, the admission of such evidence would not affect Khan's right to fair trial under Article 6 at all because the national law provided him with a remedy to challenge the admissibility of such evidence. Also in the area of evidence and confessions it has been use to address the problem of oppression being "torture ,inhuman or degrading treatment".(S 76(8) and see R v Fulling 14where it was held by Lord Lane that Article 3 of the ECHR does not refer to the meaning of torture in itself and there is no comprehensive definition in PACE. Moreover the situation in this regard can be compared in terms of the constitutional aspects where as the Act is being revered for holding up the Rule of law it is often viewed as offensive to the notions of parliamentary supremacy.This has a lot to do with Britain's membership of the EU which was the basis for the promulgation of the Human Rights Act 1998 and has posed a number of problems even recently after the Act was passed.. Although it was strongly emphasised during the promulgation of this Act that none of the rights contained in the ECHR are placed beyond parliamentary interference by its operation and that an ongoing attachment to the traditional doctrine of parliamentary sovereignty would be adhered to. However in practice the Parliament has to consider the human rights implications of draft legislation and its enactments whenever possible have to be read consistently with relevant provisions of the ECHR. Furthermore, some national courts are empowered to issue declarations of incompatibility if legislation is found to fall short of ECHR and then there is a possibility of triggering the some sort of Fast-track amendment by means of administrative legislation. Also if these national provisions prove insufficient to secure respect for human rights in a particular case, there can always be proceedings before the European Court of Human Rights. On a concluding note the Post 9/11 and 7/7 situations saw the UK government giving effect to draconian legislation in the name of homeland security.These concerns about the government's attempts to stifle freedom of speech and freedom of expression have been reflected in the speech of Mrs Mary Robinson,15 "Unfortunately, what I saw and heard was undemocratic regimes using the tragedy in the United States of 9/11 to pursue their own repressive policies, secure in the belief that their excesses would be ignored. The extension of security policies in many countries has been used to suppress political dissent and to stifle expression of opinion of many who have no link to terrorism and are not associated with political violence." This has not only been the case in third world countries but in Britain as well. In the United Kingdom, paid political advertising on television and radio is now banned. This is a flagrant breach of the freedom of speech and expression helped little or challenged by the Human Rights freedoms of expression. Moreover this ban on political advertising does not just apply to political parties, but anyone with political views. Such a law excludes interest groups and non-mainstream views from political debate and does not allow people to have their say openly. The Human Rights Act 1998 is still silent on this issue though. Where as it can be seen that the saving grace from the tyrant executive policies has come from the Human Rights Act 1998 which has aided the judiciary in upholding the notions of the rule of law and the freedoms of speech and privacy , there is however a long way to go ten years down the lane today in the light of the draconian legal developments like the Anti terrorism Act 2001 .The Act keeps on playing a vital role nonetheless in strengthening the judiciary's stance against unwarranted access by the public authorities and as well as helping them declare any UK law incompatible with the Human Rights Act 1998 and thus upholding the rule of law. Bibliography 1. Maitland, F.W.(1908) The Constitutional History of England. A Course of Lectures Delivered. Cambridge: Cambridge University Press, 2. Jeremy Waldron (2006)The Core of the Case Against Judicial Review ,Yale Law Review 3. Meny, Y.(1993)Government and Politics in Western Europe, 1993, 5, 6 4. Second Treatise of Civil Government, Chapter XII, para 143, 5. Vile, (1967)M.J.C.Constitutionalism and the Separation of Powers, 1967 6. Galligan(1986) D.J., Discretionary Powers 1986, 219. 7. Dicey, A.V(1959) ., The Law of the Constitution, 10th Ed. 8. Craig, P. "Competing Models of Judicial Review" in Forsyth, Judicial Review and the Constitution, 373. 9. D. Oliver(1987) "Is the Ultra Vires Rule the Basis of Judicial Review" P.L. 543. 10. J. Jowell(2000)"Beyond the Rule of Law Towards Constitutional Judicial Review" P.L. 119. 11. M. Elliott,(1999) "The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law" C.L.J. 129. 12. Lewis Carroll (1951) "Alice in the Wonderland" 13. Constitutional Law, (2006)Administrative Law and Human Rights: A critical introduction' by Ian Loveland 4th Edition, ISBN 0-10-929041-5). 14. Cane, P(1996) An Introduction to Administrative Law, 356. 15. Birkinshaw, P(1994),, Grievances, Remedies and the State p.3. 16. J. Thompson(2000) "Abandoning the Law of Delict" [2000] S.L.T. 43. 17. Nicholas Haysom and Clive Plasket, "The War against Law: Judicial Activism and the Appellate Division" (1988) 4 South African Journal on Human Rights 303; 18. Michael Kidd, (1990)Internal Security and Specialist Judges" (1990) 6 South African Journal on Human Rights 417. 19. Professor Vernon Bogdanor, (2006)"Parliament and the Judiciary: The Problem of Accountability", Sunningdale Accountability Lecture. 20. Constitutional Aspects of the Challenge to the Hunting Act 2004 (HL Paper 141), p.31. 21. Feldman, D.(2000) "Convention Rights and Substantive Ultra Vires" in Forsyth, Judicial Review and the Constitution 2000, 266. 22. Craig, P., Review Article(2001) "Constitutional Analysis, Constitutional Principle and Judicial Review" Public Law 763 [766]. 23. De Smith, S.A.(1995), Judicial Review of Administrative Action 1995; 24. Craig, P.(1998) "UltraVires and the Foundations of Judicial Review" (1998) CU 62 25. Jowell, J.(1999) "Of Vires and Vacuums: the Constitutional Context of Judicial Review" PL 448 26. Lord Steyn (2007) Democracy, the rule of law and the role of judges, Oxford Journal of Legal Studies. 27. Joanna Miles,(2000), Standing under the Human Rights Act 1998: Theories of Rights Enforcement & the Nature of Public Law Adjudication, The Cambridge Law Journal (2000),133-167 Cambridge University Press 28. Setting the record straight(2007)Human rights in an era of international terrorism, E.H.R.L.R. 2007, 2, 123-132 29. The Human Rights Act (2007)Six years on: where are we now, E.H.R.L.R. 1, 11-26 30. Commercial confidences after the Human Rights Act(2007) E.I.P.R. 29(10), 411-419 31. Slapper, Gary and Kelly, D (2004) 'The English Legal System, 7th edition', London, Cavendish. Table of Statutes Human Rights Act 1998 Hunting Act 2004 Parliament Acts of 1911 and 1949 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 Nationality, Immigration and Asylum Act 2002 Read More