The Human Rights Act
By: carolyn2010 | Posted: 26th February 2010
Introduction
Lord Irvine of Lairg wrote an article on the impact of the Human Rights Act on the legal system. In his article he tells about the various transformations that have taken place and their impact as a result of the Human Rights Act. He is quoted as saying that the relationship between the various branches of the law has been strengthened. The interpretation of the law plays a role on how the act will impact on the people of that region. The Human Rights Act of 1998 is of the UK and it was royally assented in the year 1998, but was enforced in the year 2000. Its main objective is to add to the rights and strengthen the already existing rights. All the courts are able to give punishment for the breach of these rights. This Act also did away with the death penalty punishment. This Act considers it against the law for any public person to commit acts which are against the rights of the Convention on Human Rights. The judges are supposed to support their decisions and make the right interpretation of the legislation. Their decisions and interpretation of the law should rhyme with that of the Convention. When there is no rhyme between the two parties, the former can declare incompatibility through issue of document stating that declaration. The Strasbourg Court becomes the last solution if a person is not satisfied with the rulings made by the other courts.
Impact of Human Rights Act on the legal system
The impact of the Human Rights Act on the legal system was not only on the courts, but also on public law and its region of operation. The Act has an impact on the courts, people, public authorities, the groups that are found in the society and parliament. These areas though different from each other, are related. These areas are very significant to the law. There are some factors which are very important and need to be considered. The first is that the Act was made for many functions other than giving out punishment when the rights of the Convention were violated. The Act was intended to bring in human rights into public service. These rights were incorporated and they became major issues when it came to the process of making decisions and making plans all over the public service (University of Cambridge, 2009).
The second factor is that the Act provides remedies which have limitations when it comes to handling the problem of Convention rights which have been violated. Enforcement of these rights can be done principally where the public authorities have erred. The effect of this has not been felt at a large magnitude though it has also realised some benefits. A good example of where these rights are put into application is as regards the discrimination which is felt when it comes to the process of succession of tenancy. When the right is omitted when dealing with cases where the Convention rights have been violated, development of remedies which are innovative is hindered (University of Cambridge, 2009). That is what happened and the principle of legislative sovereignty was also ignored. This prevented the removal of a legislation which prohibited the application of those legislations considered not rhyming with the Convention Rights. This is because those legislations which were considered very good, but not rhyming with the Convention rights could not be effected.
The third factor is that politically, the improvement of the standards of the human rights has faced no resistance. The government offers support by amending some of the legislations that exist especially when faced with a situation of rights that do not rhyme with the rights of the Convention. There are however cases whereby the government resists the amendment of some legislations. An example is whereby the legislation has to do with the security of the nation. Legislations which are terrorism related face a lot of opposition from the government (University of Cambridge, 2009).
This Act did not do away with parliamentary sovereignty. This is the fact that the courts cannot do away with an existing legislation by pleading incompatibility with the rights of the Convention. Two provisions that have roles in the determination of the Queen's power in parliament are made in this act (University of Cambridge, 2009). The first provision recommends that all the bodies should read the legislation in a way that is likely to rhyme with the rights of the Convention. In other words, this means that the legislation is not dumped, but rather it is read in a way that makes it draw closer to the rights of the Convention.
The Queen is not limited by the legislation to make her goals. The Queen has given the judges the authority to make a declaration that the legislation made by parliament is not correct when it conflicts with the Convention rights. That authority is said not to affect the legislation in terms of validity, but the judges cannot embarrass the Queen (University of Cambridge, 2009).
The impact of politics on the declaration of the lack of compatibility between the human rights and the rights of the convention is a means of paying up for the weaknesses that the government has. The government always introduces amends whenever a case is presented where the legislation is not compatible with the rights of the Convention. The government at times makes these amends half-heartedly especially where it regards security. A good example is the case where terrorism is the issue. This move by the government shows that trends are changing and that in the near future there will be no incompatible legislation lying in the books of law. The government is dealing with the issues of incompatibility and are exploring any such legislation that is seen as incompatible with the rights of Convention (Atlantic International University, 2007). This helps the government in reducing the number of weaknesses that exist in its system. By doing thus, the gap between the legal system and the sovereignty of the Queen is reduced.
A remedy in case of violating the standards of Convention does not exist and thus judgment deviates from the rule of sovereignty. This leads to the development of a gap between the legislature and the judiciary. The executive members at times put a lot of pressure on the judges to present the interests of the former saying that the government is democratically legitimate. This causes the judges to respond to any power among the various organs of the system. The judiciary thus gives more attention to the principal maker of the decisions. This is however seen to look down on the rights of the Convention. The different sources of legitimate constitutions are ignored (Atlantic International University, 2007).
The distribution of powers is a principle of the constitution. There was a distribution of powers between the executives and the devolved legislatures in Westminster at the settlement of the devolution in the year 1998. Rights of the Convention have impacted differently when subjected to the devolution legislation. The 1998 Act of Scotland limits the competencies of the constitution on the issues of devolution of the authorities. In the year 1998, the Human Rights Act that was enacted did cause an impact on the competence level of the authorities. It however, limited the way through which the competencies of the authorities can be given. There is also the fact that the rights of the Convention and their change into law of the municipal are aimed at operating at a level where the authorities can develop a high level of standards for offering support to and to protect the human rights (Liberty, 2009). This should be done as per the requirements of the Strasbourg court. The Strasbourg Court has set up standards that should be followed. There is higher expectations for use of the same approach in operation with regard to the association that exist between the kinds of protection of human rights that is accessible at the UK level and the jurisdictions which have been devolved. Bearing this in mind, Scotland ought to be in a position to provide a high protection to the rights of the Convention while relating the matters that have been devolved (Liberty, 2009).
The idea of devolving the settlement was not accepted, as spelled out in the reference made by the Attorney General. A committee that was composed of nine judges was organised and it came up with the conclusion that an error was committed by the judicial committee (Fenwick et al 2006). This error was made when that committee ruled out that the limitation of time led to the violation of the guarantee that the trial would be conducted within time limits that were reasonable. Seven of the members of that committee were English while two were Scots. The decision was reached supporting the seven who were the majority. That indicates failure when it comes to the human rights (Fenwick et al 2006).
The application of the corrective system that falls within the Act is not dominant. No damages are set for those principles which are considered to lack magnitude. The people, whose rights are violated, are denied the judicial solution. The judicial solution involves going to Strasbourg to appeal (Hoffman, 2009).
There are areas where a difference in the law has been noted due to the application of the Act. The benefits that have been felt by various groups of people have either been direct or indirect (Wadham, 2007). These groups include those whose needs are ignored and thus not laid out in the political arena. Examples are suspected terrorists who are foreigners, insane people who require the services of the asylum, those prisoners who have been sentenced for life and those who serve sentences that are not well determined, the homeless people, victims of the crime with violence, those prisoners who are sentenced due to cases of indiscipline, patients who are deemed incompetent, the families of victims of crime who are in their quest of what happened to the victims, those overseas persons who fall victim to the violation of their rights under the Convention rights which is caused by those agents who have been assigned duties by the government, and those people who face the risk of being homeless due to the repossession of their homes by their landlord or landlady. All these people need to be protected by the law (Tortell, 2006).
The power of the media is also being reduced so as to protect the rights of humans especially as regards the privacy issue (Fenwick et al 2006). The media is always keen on getting juicy news and giving it to the public. This has been a major concern to many people as they want their privacy to be respected. The privacy issue extends to cover also the damages that are laid out as regards the violation of the right to confidentiality of one's information that is shared with in confidence with a person for example a therapist. By dealing with this issue, the strength of the legal system has been noted and appreciated (Fenwick, 2007).
This Act has also been influential in parliament. There have been statements which have been made by the members of parliament and being introduced as Bills. When these Bills are compatible with the Convention rights and all the members of the House agree, they are considered law and no test is carried out as regards compatibility.
Conclusion
Lord Irvine of Lairg wrote an article on the impact of the Human Rights Act on the legal system. In his article he tells about the various transformations that have taken place and their impact as a result of the Human Rights Act. There have been many transformations on the legal system of the UK which owe to the human rights Act. There is the issue of incompatibility of the legislation with the rights of the Convention. The rights of the convention have been left to prevail over the legislation. The government, though weak in many areas, has made amendments to those legislations which are not compatible with the rights of the Convention. The privacy of the people needs to be preserved.
References
University of Cambridge (2009); Retrieved from: http://www.law.cam.ac.uk/faculty-resources/download/the-impact-of-the-human-rights-act-1998-on-english-public-law/2681/doc on 19th Dec 2009
Atlantic International University (2007); Retrieved from: http://www.aiu.edu/publications/student/english/Ascertaining%20the%20Boundary%20of%20Legitimate%20Judicial%20Intervention.htm on 19th Dec 2009
Liberty (2009); Retrieved from: http://www.liberty-human-rights.org.uk/issues/human-rights-act/pdfs/the-human-rights-act-exploding-the-myths.PDF on 19th Dec 2009
Fenwick H, Phillipson G (2006); Media Freedom under the Human Rights Act; London: OUP
Hoffman D (2009); Human Rights in the UK; London: Longman
Wadham J (2007); Blackstone's Guide to the Human Rights Act 1998; London: OUP
Tortell L (2006); Monetary Remedies for breaches of Human Rights; Cambridge: Hart Publishing
Fenwick H (2007); Judicial Reasoning under the UK Human Rights Act; Cambridge: Cambridge University Press
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Tags: decisions, relationship, legislation, acts, main objective, transformations, year 2000, breach, parliament, death penalty, incompatibility