The Human Rights Act 1998 and Its Impacts on English Law and Its Influence on Business - Essay Example

Business Law The Human Rights Act 1998 and its impacts on English Law and its influence on Business College/ IntroductionThe Human Rights Act 1998 is an act of Parliament that received granting of royal assent on 1998 and it came in to effect on 2nd October 2000. The Human rights Act aimed to give more effect in UK law to the rights that are contained in European Convention on Human Rights. The passing of Human Rights Act has totally abolished the death penalty in UK law. The Human Rights Act brought further effects and changes in English law and this has been a matter of debate for the last few years. There was growing concerns regarding its affects on business and commercial activities. This piece of research work is an attempt to analyze the changes brought by Human Rights Act in English law. This paper discusses the influences of Human Rights Act on business environment based on sources of English law and European Court of Human Right cases. Human Rights Act 1998: An overview Chandler and Waud (2003) stated that The Human Rights Act 1998 gives ‘further effect’ to the rights and freedom that are guaranteed to all citizens by European Convention on Human Rights and Fundamental Freedom. More specifically, it doesn’t form or create any new statutory or law rights. It imposes duties on public authorities to act in any possible way that is compatible with Convention right (p. 419). The Human rights Act also imposes duty on tribunal to consider any relevant decision or advisory opinion of the European Court of Human Rights (ECHR) when determining issues in connection with convention right. According to the Act, it is unlawful for any public body to act in any way which is not compatible with Convention rights. The Act also requires UK judges to consider decisions of the Strasbourg court and also to consider legislation as long as it is compatible with Convention Rights. The Human Rights Act is applicable to all public bodies in the United Kingdom like central government and local authorities. It has greater influence on private law legislation as well. The Human Rights Act places duties on all courts and tribunals within the United Kingdom in order to interpret legislation in way that is compatible with ECHR. Whenever it is not possible to interpret an act in accordance with Convention, a declaration of the same must be issued by the court under section 4 and it must state how the legislation breaches human rights. It is illegal for a public authority to act in a way that contravene convention right and therefore public authority includes any other person who functions in functions of a public nature. Changes brought by Human Rights Act in English Law Betten (1999) emphasizes that the passing of Human Rights Act have a momentous impact on the UK legal system. “The enactment of the Human Rights Bill will be as though a tidal wave has transformed the legal landscape” (p. 12). The impact of the Act on Parliament, courts, its effect on society and on public authorities can be differently viewed and assessed. Government has given more priority on providing legal solutions for those who violate Convention rights. It thus tried to form a culture of Human Rights and to bring it in to the mainstream. Department of the Constitution affairs (2006) argued that the changes brought by Human rights Act on English law have been ‘significantly less and significantly less negative’ than what has been predicted from 1997 onwards (p. 3). There were arguments that Human rights Act have been raised across a wide range of civil and criminal litigation. It was found that the decisions that are challenged had been properly considered. It was reported that Human Rights arguments were rejected by courts because of that they are misconceived or were considered to be irrelevant to the case (Department of the Constitution Affairs, 2006, p. 3) In the case of A and Others v The Home secretary, the house of Lords concluded that the detention without trial of foreign people under the anti terrorism and security act 2001 was incompatible with European Convention on Human Rights. It was concluded that in the above case, the decision was taken based on discrimination on the grounds of citizenship (Department of the Constitution Affairs, 2006, p. 3). In the above stated case, one of the nine members of the court decided that there was a ‘public emergency threatening life of the nation’ and applicants remained in detention as UK courts did not entail the power of to strike down under the Human Rights Act (Department of the Constitution Affairs, 2006, p. 3). Another case law between Chahal and United Kingdom concerns the ability of UK to remove those people who threaten UK or those who have entered illegally. Some of those who are eligible for deportation or removal from the UK are not removed because of that the country they would returned is considered to be unsafe. These examples prove that the government desire of avoiding terrorism and crime was not obstructed by the Human Rights Act 1998. There is an area of the judgment within which the judiciary will postpone based on democratic criteria to the opinion of legislature (Department of the Constitution Affairs, 2006, p. 4). It is argued that no effective legal remedy can be provided. In the case between A v Secretary of State for the Home department, the suspected international terrorist had to remain in Belmarsh prison waiting for legislation. It is to be noted that their decision has actually violated Articles 5 and 14 of the European Convention on Human Rights. In Bellinger v Bellinger, there was nothing done to validate the marriages of the successful litigants who had shown that their earlier marriages had been incompatible with the rights under articles 8 and 12 of of the European Convention on Human Rights (Feldman, 2005, p. 5). According to Department of the Constitution Affairs (2006), there was no settled consensus regarding the impact of the Human Rights Act on decisions of the courts of England since the Human Rights Act came in to effect. Convention rights some time are not relevant on the facts of a particular case and hence Human Rights Act did not affect the final outcome of those cases in which arguments are raised. Friedmann and Barak-Erez (2001) argued that the Human Rights Act will affect relationship between private parties on the basis of literal reading of the Act and on the basis of parliamentary intention (p. 132). Under the European Convention and Human Rights, convention rights are only rights against the state. Many of the Convention rights are stated in broad terms. Article 8 states as follows: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right” It can be interpreted that this is merely giving rights against the state or it is as stating more general right (Friedmann and Barak-Erez, 2001, p. 133). Human Rights Act and its impacts on Businesses UN special representative on Human Rights Professor John Ruggie (2009) argued that there are few internationally recognized right that business cannot impact or even to be perceived to impact. Governments do not normally help businesses if they fail to comply with enough guidance on the human rights impacts of their business activities. Friedmann and Barak-Erez (2001) emphasizes that a number of rules of international tort may not conform to the European Convention and human rights. One of the most internationally debated topic within international torts is whether the Human Rights Act will encourage the court to maintain fuller protection against invasions of the privacy and abuse of confidential information (p. 140). It is widely known that the English law doesn’t protect privacy on coherent basis, but the claimant can get remedy only if he can ‘shoe-horn’ his claim in to one of the existing category for claim like trespass or nuisance. According to Friedmann and Barak-Erez (2001), it was evident from the A v UK case law that the right of a parent to chastise a child has been challenged. In dealing with this, it was found that English law was inadequate to fulfill the states’ obligation in order to ensure that those individuals are not to be treated for inhuman activities (p 140). In order to recover damages in negligence, the claimant must be able to prove that the public authority was in breach of duty of care. The courts haven’t been ready for accepting that public authority is under a duty of care to those who could be affected by negligence. As has been discussed earlier, when a foreign person has been imprisoned under the anti terrorism and security act 2001 and it becomes incompatible with European Convention on Human Rights, it can adversely affect business environment as well. According to Kelly and Holmes (2005) the consequence of the non-incorporation was that the convention couldn’t be directly enforced in English courts (p. 8) Conclusion Human Rights Act and its impacts on English law have been a matter of debate. This piece of research work analyses the Human Rights Act 1998 and those changes in English law brought by passing of the Human rights Act. References Betten L (1999), The Human Rights Act 1998: what it means: the incorporation of the European Convention on Human Rights into the legal order of the United Kingdom, Martinus Nijhoff Publishers Chandler P and Waud C (2003), Wauds employment law: the practical guide for human resource managers, trade union officials, employers, employees and lawyers, 14th Edition, Kogan Page Publishers Department for Constitutional Affairs (July 2006), Review of the Implementation of the Human Rights Act, Department for constitutional Affairs, Retrieved from www.justice.gov.uk/guidance/docs/full_review.pdf Feldman D (Oct 2005), the impact of the human rights act 1998 on English public law, Charles Clore House, Russell Square, London, Retrieved from http://www.law.cam.ac.uk/faculty-resources/summary/the-impact-of-the-human-rights-act-1998-on-english-public-law/2681 Friedmann D and Barak-Erez D (2001), Human rights in private law, Hart Publishing Kelly D and Holmes A.E.M (2005), Business law, revised fifth edition, Routledge Cavendish Read More