Human Rights Act of 1998 - Essay Example

"It is clear from s.3[of the Human Rights Act 1998]that the[European Convention on Human Rights] has, in one sense, a lower status than ordinary statutes in that it cannot AUTOMATICALLY override pre existing law” Human Rights Act of 1998 In order to understand the Act of Human Rights, it is important to first take a look at the history behind it, and then take a closer look at its inability to overturn pre-existing law. Human rights has become an important standard in British politics. The modern concept of human rights in the UK came about at the end of World War II, when the world realized the result of some of the German atrocities that happened during the war. The Nuremburg trials shocked most of the world, including the United Kingdom, when the terrible treatment of human beings was revealed to the world. The trials did help to impact the concept that some sort of universal justice is necessary in order to make individuals feel safe, or just, about the world and the law of the world. The atrocities revealed during the trials turned the stomachs of many of the people, as well as the governments, in Europe. It became clear that some sort of restructuring was needed, and that European countries would need to cooperate in order to attain this reconstruction. Therefore, many countries were inspired to start considering aspects of human rights1 The idea of a human rights list in the United Kingdom and Europe is not a new one. Many individuals were pushing for this after World War II. However, the United Kingdom was also aware that Europe was working on a larger-scale concept of human rights in general, which would eventually become the European Convention. This may have been a reason for the United Kingdom’s delay in making its own list of individual rights. The United Kingdom has followed the laws of the convention for many years. Laws were beginning to be laid down by this new, European group, and all of Europe was eager to follow. For instance, at the Congress of the Hague in 1948, delegates and observers from 26 countries breathed life into the Council of Europe – making human rights its guiding spirit. The Council of Europe was officially launched in May 1949 with founder members Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the UK. These member countries then put together a charter of rights as well as a European court system that would help those individuals who had had their rights violated. They were able to use examples from the United States and hammered out a treaty that listed several rights. The rights were expected to apply to all citizens in the countries that had both accepted and participated in this exercise. Furthermore, other countries that were willing to work within the confines of the convention’s rules would also be accepted into the group 2. Was this a good idea? It certainly is a notion that has good intentions, but it ran clear risks for many of the countries, mainly because it was an entirely new idea, and because it limited each and every government in Europe. The Council of Europe itself does seem like a bit of a political risk for Europe to take. First, the established Court would be able to rule over national law, and if a country did not follow the laws of the convention or violated them, they would be expected to revise their laws in order to fit in with the concepts provided in the Convention. All of this was a very new concept, as no other act or convention had ever placed itself above national governments. Therefore, since this concept was very new, nobody was completely aware of how it would work. Although the European countries were expected to recognize the convention, they did not immediately have to recognize the court’s authority immediately. Regardless, many countries accepted both ideas immediately, although some did delay. Still, there was some concern as to the processes effectiveness overall, and some countries wanted to hold out in order to see if this concept would really work. Thus, the validity of the convention and its effectiveness had to be established in order for many nations to take it seriously.3 However, this validity was eventually achieved, and the court became a well-respected entity. As the court progressed into history, many people began to respect the notion of the Court, and they began to be awarded by receiving more and more cases. The court was able to pass judgments which did affect the laws in many countries. Many European nations thus began to modify their standards and laws to fit alongside the ideals of the Convention. To date, the Court has judged over 100 British cases -- often bringing controversy in their wake. Its judgments against Britain have led to the banning of corporal punishment in schools, the end of the closed shop, the protection of journalists sources, changes in press law and stricter controls on telephone tapping. Thus, the United Kingdom has not been any particular exception to the rule, and has elected, for the most part, to act within the confines of the convention 4 European society has adapted and changed throughout history, and this has also affected the topics of cases that have been brought to the court. For instance, several judgments produced in the 1980s would never have been brought to the court in the 1950s. As the court began to make more and more appropriate decisions, more countries were willing to send cases to it for decisions. Thus, the Convention has also had to repeatedly mold itself to stay within the confounds of modern society. This also means that the Court’s jurisdiction has sometimes been broadened, and reform also occurs because all of the European countries immediately recognize the Court’s authority and also allow their citizens to use the court for their justice needs. The Council now oversees 41 countries, with a few more waiting to be accepted. Several new democracies have actually taken the rules of the European Convention almost word for word into their own law books. This actually inspired some of the western countries to do the same, including the United Kingdom. The United Kingdom has had many cases ruled by the court. In order to gain a better understanding of UK law, it is important to review a few of these cases here: * In 1982, in Campbell and Cosans v. the United Kingdom, the Court ruled that the beating of children in state schools was against parents right to have their children educated in accordance with their philosophical convictions. As a result of this landmark case, corporal punishment in state schools in the United Kingdom was abolished. * In 1979, in one of its most famous cases, the Court ruled that an injunction preventing publication of an article by the Sunday Times on birth defects in thalidomide babies, granted because litigation was pending, amounted to a violation of freedom of expression. In the light of the judgment, the English law on contempt of court was amended. * The right to form and join a trade union is protected under the Convention. But in 1981 the Court held that the converse -- the right not to join a trade union -- also applied. In the case of Young, James and Webster v. the United Kingdom, it said that a closed-shop agreement which compelled the applicants to join a trade union in order to keep their jobs amounted to a violation of the Convention. * In the "Death on the Rock" case in 1995 (McCann and others v. the United Kingdom), the Court found that the killing of three IRA terrorists suspected of involvement in a bombing mission represented an unjustifiable taking of life. While the Court rejected the claim that the killings were premeditated, it criticised the control and organisation of the operation carried out by the security forces. * In the 1976 case of Handyside v. the United Kingdom, the Court ruled that the government was justified in banning The Little Red School Book, a sex education book considered to be an "obscene publication"5 There have also been other, more recent decisions that have greatly affected the rights of women in children in all countries that are members of the Convention. In 2001, several modern concepts of human rights were put into action. The General Assembly, adopting three resolutions recommended by the Committee on racism and racial discrimination, decided to observe the year 2001 as the International Year of Mobilization against Racism, Racial Discrimination, Xenophobia and Related Intolerance. First, the General Assembly focused on four notions that should help with the advancement of women. All countries that follow the Convention’s rules have been asked to ratify these measures because the Convention believes that women and children have often had their basic human rights violated terribly throughout history. This includes items like rape, forced pregnancy, and sexual violence. Offenders must be penalized, and victims protected. 6 Women were not the only people focused on during this meeting. Children were also addressed, because there is a specific need to protect them and ensure that they are not being taken advantage of. It is feared that children may learn to repeat the cycle of violence they were exposed to and use what they learned to lash out at a future generation. Thus, two notions were proposed by the Committee to assist children, and these concepts were forwarded to members of the Convention. There is a need for this, as children are particularly vulnerable to crime and often caught up as victims of their own surroundings. This includes children who are displaced, for instance, in refugee camps and exposed to extreme amounts of stress. Some of these children are easily exploited, and the Committee recognizes that this must stop.7 Furthermore, the Committee stated that all forms of child labor must be banned. This includes forced labor and slavery. The Committee has asked its members to outline a set of dates to slowly get rid of this process, and thus also ensure that the law is taking effect. Another concern is to make sure children are not being sexually exploited. Thus, it is also expected that states will grant the measures the Committee has considered under this topic as well Most countries view child labor as an unwelcome atrocity and therefore expect the members of the Convention to take this very seriously 8 While the United Kingdom was happy with most of the decisions being made by the European Convention and had every desire to continue to conform to it, the government wanted to bring some of the rulings closer to home, and this inspired the Human Rights Act of 1998. The Human Rights Act of 1998 came into existence as an Act of Parliament, and received Royal Assent on November 9, 1998. Its purpose was to give more power to the rights already present in the European Convention on Human Rights. Thus, UK courts are allowed to rule on cases involving Convention rights without having to involve the European Court of Human Rights. 9Furthermore, another interesting result of the Act is that it abolished the death penalty in the UK. The Act itself does not allow a public body to do anything that does not comply with concepts in the Convention, unless an Act of Parliament claims that there are no alternatives. Judges are also required to use the rights of the European Convention when enforcing rules; judges cannot override rules presented by the convention. If they cannot make the rule fit, the judges must make a declaration of incompatibility. However, an individual is still allowed to take his or her case to the Strasbourg court for a final appealed decision, if necessary. If a declaration of incompatibility is issued, it does not necessarily ignore or outlaw the legislation, but actually allows the legislation to be revised by a different procedure.10 Thus, courts are expected to interpret the law as much as possible to fit in with the ideals in the European Convention on Human Rights. This has limited judges for the most part, and as a result, this has caused some debate. However, it does appear that most judges do not interpret Acts of Parliament in ways that might disguise or hurt their meaning. All public parties and companies in the UK have to act within the laws outlined in the Human Rights Act. It includes the Courts as well, but does not include Parliament. 11Some have felt that the judges should have more power and not be so restrained or restricted. However, others feel that these restraints promise to make interpretation of various laws easier, and therefore judgments will be easier to understand and more acceptable to the general public. “General public,” as mentioned in the previous paragraph, is something that the Act was initially concerned with. However, the Act’s focus has grown a bit throughout the years. Although the initial intention of the law may have been to focus on public bodies, this has not affected the law from interfering with private laws as well. Therefore, some people have commented that the law has both a horizontal effect and a vertical effect, which means that there are arguments between citizen and citizen, as well as citizen and state 12This has come about because courts have been labeled as public entities, and thus they have to make their judgments fit in with the concepts of the Act unless, of course, the judge feels that the result is incompatible. Part of this is because the Act states it is not lawful for a “public authority” to act in a way that might take away a convention right. 13 What was the purpose of the Act and why did it take effect in the first place? The Human rights Act came about as a result of much arguing in the United Kingdom regarding the development of some kind of Bill of Rights. However, the Act is very different from a Bill of Rights, because there is a huge focus on the individual’s rights. Prior to this, most of the “freedoms” people experienced were seen as residual. The constitution itself is rather broad and general when defining these terms. The Human Rights Act, formed in 1998, promises to impact the constitution in Britain. In order to understand how it is going to override law (although it cannot automatically do so), one must analyze the British Constitution as well as the Act itself.14 There is, in fact, a huge debate about the British Constitution. Is there a British Constitution, anyway? The United Kingdom’s constitution is different from any other country’s constitution. In fact, because of its individual nature, people have questioned whether or not there actually is a constitution. However, those who say that it does exist cannot seem to agree on what the actual laws are. Therefore, there is often confusion relating to the law and the constitution, and the Act hopes to at least resolve some of that problem. Many people do think that there must be a constitution because if it did not exist, the UK would have no guidance in its government15. However, there are no constitutional rules that are differentiated from other areas of law, and many of the laws can be erased or changed via a vote in Parliament, and therefore if a constitution does exist, it is certainly not a constitution in the traditional sense. Other individuals do define the constitution differently. ." Professor Where defined a nation-states constitution as "the whole system of government of a country, the collection of rules which establish and regulate or govern the government.” 16 Since the UK does seem to have rules that determine its decisions, many people conclude that the UK does have a constitution. While the constitution itself may not be written, there are several constitutional ideals that have been written down via legislative acts or judicial happenings. The British seem to prefer rules that win people over a period of time, and thus this usually results in a Parliamentary vote. 17 The Human Rights Act was certainly no exception to this rule. It was on the table for quite some time as numerous individuals went back and forth about the issue, delaying the matter for some time. The Human Rights Act became law after years of battle in Parliament, as they tried to find an agreement and set down a Bill of Rights concept. The Act was made to "intended to provide a new basis for judicial interpretation of all legislation, not a basis for striking down any part of it”. 18Thus, it does not have the same sense as the European Communities Act of 1972 and the European Convention is not a big part of the Act, but rather focuses on specific concepts of the European Communities Law in its own law, labeling them as “convention rights” and making sure they are informed as a part of UK law. What, exactly, do these convention rights entail? There are a few common concepts embedded here, including the prohibition of torture, the right to life, the right to not be forced into being a servant, the right to liberty, the right against retrospective application of criminal law, right to a fair trial, right to freedom of thought and religion, right to freedom of expression, the right to marry and have a family, and the right to avoid these rights without being discriminated. Also included is the right to education, the right to have possessions, and the right to free elections. Thus, the ideas expressed here demonstrate several of the basic human rights, and concepts that are generally applied to countries that focus on freedom and liberty. 19In order to gain a better understanding of the act, it is important to view how it interacts with the British constitution. The Act itself was immediately considered as a part of the constitution once it was passed. The Act was able to reconcile the issues of Parliament’s power with the concept of a list of rights for the individuals. However, the Act is not able to use rights as many other constitutions do, mainly because of Britain’s focus on Parliamentary supremacy. How does the Human Rights Act work and what are its limitations in the government? The Human Rights Act states that when a new bill is presented, one person in the government must take charge of the bill and compare the bill to the ideals of the convention stated in the Act to see if the concept can fit. If there is a feeling of uncertainty, the government member must step up and voice this. Therefore, new bills and other additions must be carefully examined before being fully considered. Thus, this idea expresses the fact that "made with careful thought and on responsible advice," lest Parliament succumb to the obvious temptation to pass illiberal but popular legislation without regard to its civil liberties implications, leaving it to the courts to act as "ultimate arbiters of conformity with human rights”.20Therefore, before the new Act could take effect, or any bill could take effect, it was assumed that Parliament would follow the concepts in the European Convention on Human Rights. According to Douglas: The Human Rights Act not only elevates this presumption over other competing rules of construction, it eliminates the need to find an ambiguity before referring to the Convention in interpreting legislation. In fact, quite the opposite is true. Under the Act, courts are required to interpret legislation so as to give effect to Convention rights unless the terms of an act of Parliament are "so clearly incompatible with the Convention that it is impossible to do so.",204 Moreover, by requiring courts to apply this new rule of construction to legislation "whenever enacted,"205 the Act deviates from the usual rule that more recent parliamentary enactments will override inconsistent provisions of older acts; under Section 3, Convention rights are to be considered in interpreting legislation passed subsequent to the Human Rights Act and are to be given effect unless this is positively foreclosed by the terms of the subsequently enacted legislation Furthermore, Section 4 of this act allows certain courts to declare items incompatible if the proposed bill or legislation cannot fit in with the Convention rights. If the act is seen as incompatible, it does not necessarily harm the validity of the concept. Instead, the matter is then brought to the executive branch, and this branch can figure out how to revise the proposals in order to fit Convention ideals. 21Is this the best way to approach the issue? Many people feel that it is not, and this is a weakness of the Act. So much must be done in order for the Act to affect law at all that it seems, sometimes, almost ineffective in itself. However, the government is slow to change its ability to control some of these issues, so it also could be that as things progress, the Act may gain more power. However, the country will have to wait and see about this for now. There are further ambiguities in the Act that have also held it up to more critical debate. Whether or not it can actually do anything or override any law seems unlikely, but furthermore, some of the terms in the Act are so loosely defined that it can make interpretation difficult. Another part of the act that is important to discuss is Section six, which states that it breaks the law if: “a public authority to act in a way which is incompatible with a Convention right..” 22The problem here is trying to define what a “public authority” actually is. The term is too general, and many, many individuals can fall under this category. Furthermore, the Act states that courts are also to be considered as Public authorities. 23Therefore, this presumption makes it a bit difficult to understand exactly how to interpret this part of the Act. According to Douglas: “Section 7 provides that any person claiming that a public authority has acted or intends to act in breach of a Convention right may bring a claim directly under the Act”. 24The person that is enacting this right needs to be some kind of victim of the public authority. If the victim wins the claim, then he or she may be awarded some kind of damage money. The Act further seems reluctant to limit the judiciary’s power to enforce this law. This is probably because there is a traditional belief in the UK regarding the supremacy of the Parliament. While the definition of a “public authority” is broad, the Act tells us that Parliamentary members are not considered to fall under this category; thus, they are excluded. 25Therefore, Parliament seems to take on an even more important, if not all-powerful status in the form of the Act, since their members will not be affected at all by any of the notions presented in the Act. The courts, however, are seen in a different light, as mentioned in the previous paragraph. They are, in fact, judged as “public authorities.” This is because another important goal of the Act was to make sure Convention rights and common law are on the same page and working simultaneously with each other. By stating that courts are “public authorities” who must take into consideration the Convention rights themselves, the judiciary must therefore use these rights when using common law to resolve disputes and other matters in court. This concept is not necessarily stated in the act, but the action described above is certainly a result of the expectations of the act. 26 Why is it important to put the decision making process into the power of the judges? Robert Jackson, a U.S. Supreme Court Justice, stated: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”. 27This does not imply that judicial decisions are not also political; most judicial decisions, in fact, are very political. Emerson further argues that courts can effectively keep the line "between the sphere of social power, organized in the form of the state, and the area of private right”. 28This reflects upon many Western countries’ assumptions that Constitutional law is better and more respected than other laws. It is also assumed that the other branches of government must also follow constitutional law and if they wish to change a part of the law, they must attempt to amend the constitution, which, in itself, is a very difficult process. This concept actually presents democracy as a balance between fundamental issues in rights, like human rights, and majority rule. 29If we do apply these concepts, we can see that the Human Rights Act might only discuss, but not really act, upon the rights and liberties provided in the document. For instance, the Act itself can be revoked if a majority of the House of Commons decides it does not want the Act to be used anymore. The Act also has no important legal status, nor does it do anything about other inconsistent acts. Furthermore, while the Act does make courts consider the rights of the Convention, if some piece of legislation does not fit in with this concept, this does not necessarily affect the validity of the idea. Courts have no power to throw out measures that are inconsistent with the Convention’s ideals; all the Courts can do is claim that the concept is, in itself, incompatible. Furthermore, The Human Rights Act also allows Parliament to override Convention rights if necessary. So, when the courts claim that something is incompatible, the government can refuse to amend it. Therefore, it appears that there are still some severe issues here and unpopular minorities may be at a loss when it comes to this process. 30 This is not to say, however, that the Act does not promise to have its benefits. First, the Act is well-respected although it is not very old, and this means that Parliament will not repeal it unless it wishes to risk a bout of angry unpopularity, which is unlikely to happen. It may also be true that the ability to void a particular legislation and/or declare it incompatible might simply be a question of technicality. Courts will probably be careful when reviewing Convention law, not wishing to cause quarrels with the other branches of the government. Furthermore, since it has taken Britain such a long time to enact a Bill of Rights law, it makes the notion of repeal totally unacceptable to both the government and people. 31Furthermore, the Act is able to avoid the shortcomings of the U.S. system where litigation seems to be the only answer to many questions. In the United States, most legal questions are answered by a court case and a court decision. This only seems to increase controversy for the Americans, as there are biases in this type of approach when it comes to assisting individuals with their rights. Another problem with this type of judicial system is the fact that many politicians will be inclined to act according to the popularity of an issue, and this may leave the courts with the issue of having to override a popular concept. Thus, this causes many individuals to have a feeling of distrust for the courts. This is not to say that the British system of government does not have its own biases and criticisms. For instance, many people still say that the British government is overly-aristocratic and does not respond well to popular sentiments of the people. However, Parliament has always been happy to focus on individual liberties and recognizes the fact that they must be protected, and this concept is often lacking in many officials who participate in the United States’ government. The Human Rights Act places the decisions in the hands of Parliament, the same area of government that has historically had the power to make important decisions. Therefore, while we can see the importance of the Human Rights Act and the way that it works within the United Kingdom’s political environment, it can be stated that it does not, in fact, override anything that already exists. This is because it was set in motion to agree with the concepts presented in the European Convention, and this is something the United Kingdom has been following politically for a number of years. Furthermore, any changes are heavily monitored and regulated, having to pass through several steps before something will be accepted. The Human Rights Act was passed not so much to change or override existing legislation, but to allow the United Kingdom to have a bit more action in its own human rights cases. References Brittanica Online. (n.d.). “Human Rights Act of 1998). Douglas, C. (2000) “Human Rights Coming Home at Last.” New Statesman. Vol 129. Douglas, V. (2002). “The Human Rights Act and the British Constitution.” Texas International Law Journal. Retrieved June 18, 2009, from: http://www.allbusiness.com/professional-scientific-technical-services/legal-services/1123918-1.html Fenwick, H. (2007). Civil Liberties and Human Rights. Routledge-Cavendish. In Fiftieth Anniversary Year, Assembly Reviews Progress on Human Rights Declaration (1999). UN Chronicle. Vol 36, Spring. Read More