Posted: February 15th, 2022
SECTION B: COMPULSORY ESSAY QUESTION
Topic Question: ‘The Human Rights Act 1998 is a Vital Tool that not only Guarantees Human Rights but Also Holds those in Power to Account.’
The above statement forming the basis of this critical analysis elaborates on two primary issues regarding the Human Rights Act. First, the statement highlights that one of the roles of the act is the stipulation and protection of the human rights and fundamental freedoms of individuals in the UK (Hoffman and Rowe, 2010). In essence, this reflects the purpose and functionality of establishing the act within the domestic laws of the UK back in 1998 towards the year 2000.
The second vitality of the statement question is that it appreciates that other than safeguarding and promoting the rights of every citizen in the UK, the act also serves to maintain the rule of law within the UK (Amos, 2021). Stated more elaborately, the act promotes the tenets of the rule of law by holding those in positions of power to account. In other words, the act is pegged on the realization that for the human rights and fundamental freedoms of citizens and other individuals is pegged on the extent upon which those in power respect and protect and further the rights of others. The essay discusses the efficacy of the act in achieving these two goals; arguing that while the act has been instrumental in furtherance human rights advocacy and protection issues, various provisions are plausible for holding those in office accountable.
The Human Rights Act, 1998
The Human Rights Act was established in 1998 later incorporated into UK’s domestic law in 2000. The rationale for enacting this legislation was to enable the applicability of the provisions of the European Convention on Human Rights (ECHR) under UK municipal law. To this extent, it should be appreciated that the UK as a monist state limits the application of any treaty law they ratify unless such a law is given life by subsequent legislation by parliament. The concept of state monism thus asserts that treaty obligations do not automatically arise to the internal legal order of the state in question unless the state enacts a domestic law to that effect. For the case of the UK, monism is directly related to parliamentary sovereignty, where parliament is accorded with the law-making mandate. This explains why the act had to be incorporated into UK law in 2000, thus breathing air to the ECHR.
By way of overview, the act provides for various human rights and fundamental freedom protection in accordance with the European Convention on Human Rights. Some of the rights therein include the right to life, the prohibition against torture, slavery and servitude, the right to liberty and security of the person, the right to have one’s private and family life protected and the freedom of expression among others. Through articles 6 to 9, the act also applies to public bodies. The interpretation of these provisions has slowly extended to private spheres (Hoffman, 2011). For example, in (McDonald v. McDonald, 2016), the manner in which a public duty was exercised in private law was rendered essential.
Section 6 of the act defines what public bodies are and includes courts and tribunals within this definition. The act makes it unlawful for any public authority to act in a manner that is not compatible with the convention. Section 7 limits the right of individuals to instigate proceedings under section 6 to only those persons who have been or are victims of or potential victims of a violation by a public authority. Section 8 of the act is also vital as it gives the courts the inherent powers to award just and appropriate remedies. The act thus acts as a crosscutting tool in protecting individuals’ rights and fundamental freedoms by placing public officials in check.
The Extent of Human Rights Protection by the Act
Before the enactment of the Act, many rights were already safeguarded in the UK. The act thus served primarily to incorporate the ECHR into British law. A higher threshold or standard of human rights protection was established with it. The act also made specific changes to certain aspects of human rights protection. For instance, section 21(5) of the act outlawed the death penalty. By the time of its enactment, the death penalty had been abolished in relation to all civil offences, murder cases under the Murder (Abolition of Death Penalty) Act 1965 and treason under the Crime and Disorder Act 1998. The concern of the act was to abolish the death penalty in all offences, this extended the same standard to military offences. This has been described as one of the steps by the act to enhance human rights protection in the UK.
The act has been instrumental so far in various human rights protection issues. For example, by guaranteeing the right to privacy under article 8, a balance between the exercise of this right and when it can be interfered with has been maintained as was held in (Campbell v. MGN Ltd, 2002). In some instances, the act safeguards the interplay between various conflicting convention rights. For instance, there are cases where one’s right to privacy has to be balanced as against another’s right to freedom of expression under Article 9. In (Venables and Thompson v. News Group Newspapers, 2001), a question arose as to whether newspapers could publish the identities of the convicted murderers of Bulger. This was a clear conflict between article 8 on privacy and the right to freedom of expression. This case provides similar interpretations of the right to privacy as that of (Mosley v. News Group Newspapers Ltd, 2008)
In the above decision, Justice Dame Elizabeth believed that allowing such publication would result in possible physical harm to the former convicts, thus interfering with article 2 on the right to life of the convicts. In such a case, the right to privacy is rendered essential and as a means of preserving other convention rights such as the right to life. Therefore, the act has been live to the proportionality test that should be maintained in granting or limiting certain human rights, thus ensuring that the individual rights of citizens are adequately protected.
The other essential feature of the act is that it accords protection to even non-UK nationals. In (A and Others v. Secretary of State for the Home Department, 2004), the act was interpreted in favour of non-UK citizens who had been placed under custody in Belmarsh Prison. The court determined that Part 4 of the Anti-Terrorism, Crime and Security Act 2001that allowed for such detention was unlawful as such individuals required the protection of the law to the same standard as UK nationals. To this extent, the act adopted a universal approach to human rights protection, thus enhancing the applicable standard in the realization of these rights and fundamental freedoms.
The Act as a Tool of Holding Those in Power Accountable
As already highlighted, the act serves to preserve and further the human rights of individuals as well as ensuring that those in positions of power are held accountable and adhere to the provisions of the act. The act adopts various mechanisms in ensuring that those in power are held accountable. Some of these mechanisms are as follows;
Section 6 of the act defines what public bodies are. The court system and tribunal are included in this definition to interpret and determine legal issues between various parties. Section 3 of the act mandates courts to interpret both primary and subordinate legislation in a manner that is compatible with provisions of the European Convention on Human Rights, which also form a basis of the act. Courts and tribunals, as public bodies, have an obligation to give the most appropriate and compatible interpretation to the provisions of the act. The act envisages an interpretation that is beyond the normal statutory interpretation. The interpretation has been deemed to apply for both past and future legislations, thereby preventing a scenario where the act can be impliedly repealed.
The courts often apply three types of interpretation in attaining the required standard of statutory interpretation. The first style is reading, which involves the insertion of words where there are none to give a meaning compatible with the act. The second style is reading out, whereby words are omitted from a statute. The last style is reading down, whereby a certain meaning is identified as the most compliant with the convention. The interpretative role of the courts and tribunals has been extended under sections 4 and 10 that allow courts to issue a declaration of incompatibility.
In relation to the proposal to have the Human Rights Act, there were concerns from constitutional scholars that it would result in the unelected judiciary making substantive judgments about government policies and decisions. While this is one way of looking at it, it is also worth noting that the power bestowed to the courts aims to place various public bodies under check. For example, where a public entity violates the provisions of the act, the right to judicial review or appeal should be made available to the victim of the decision.
The argument that granting the court with such powers may infringe on parliamentary supremacy is flawed to an extent because the courts do not strip parliament of the right to make laws. Instead, the judiciary plays both a supervisory and advisory role to the government in ensuring that the laws enacted by parliament are compatible with the convention, with the option of rendering a declaration of incompatibility where this is not the case.
In determining whether a public body or individual has acted beyond their powers or violated a provision of the convention, the proportionality test is used in determining the balance between the right that has been violated and the objective being sought by the public entity. This was established in (R v. Secretary Of State for the Home Department ex parte Daly, 2001). The test has been vital in scrutinizing the substantive merits of decisions of public entities. The act thus provides for various remedies, including a declaration of rights, judicial review, and compensation, among others for human rights violations against public authorities, thereby holding them accountable.
Inadequacy of the Human Rights Act in Holding Government Accountable
There have been concerns that the Human Rights Act fails to provide adequate protection to rights due to the ability of the government to derogate from such convention rights under article 15. This has been evinced by various cases that have been decided by reference to common law rights as opposed to statutory rights. An example of such as a determination is (ex parte Prolife Alliance, 2003). In such instances, where there is no clear precedent to follow, judges are often accused of judicial activism.
The Human Rights Act has been instrumental in guaranteeing the protection of human rights and fundamental freedoms of both UK nationals and citizens. The act has applied a universal human rights approach to human rights protection and realization by appreciating that everyone is entitled to have their rights safeguarded. The Act lists various human rights, the extent of their protection and the remedies in instances of a breach. On a similar footing, the act has been largely effective in holding those in positions of power accountable. According to the judiciary, this has been possible with the power to interpret laws in a manner compatible with the convention. The same has also accorded courts with the power to grant remedies against any public bodies acting in violation of the act.
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