Effect of The Human Rights Act 1998

solvent of The Human Rights work on 1998Section 3(1) of the Human Rights come 1998 provides that So farthermostther as it is possible todo so, primary order and infantryman legislation mustiness be read and enduen effect ina way which is compatible with the practice rights. Whilst this does not affectthe validity, continuing operation or enforcement of whatever mismated primarylegislation, or affect the validity, continuing operation or enforcement of anyincompatible subordinate legislation, discipline legislation must be comp allowelyincapable of being compatible with the European normal on Human Rights forthe administrations in the UK to deliver a declaration of incompatibility, rather than toconstrue the legislation in favour of the party relying upon a figure right.Regarding the interpretation of the design rights, division 2(1) of the HumanRights incite 1998 states A court or tribunal determining a question which has arisenin connection with a conventionalit y right must take into account any (a) judgment,decision, declaration or advisory opinion of the European Court of Human Rights, (b)opinion of the Commission given in a report adopted nether clause 31 of theConvention, (c) decision of the Commission in connection with Article 26 or 27(2) ofthe Convention, or (d) decision of the Committee of Ministers taken under Article 46of the Convention, whenever made or given, so far as, in the opinion of the court ortribunal, it is relevant to the proceedings in which that question has arisen. The Courthas held that, when scrutinizing executive decisions and determining their compliencewith the Human Rights fare, section 2 of this Act compels them to take into accountthe jurisprudence of the European Court of Human Rights. However, it has beenmade clear that The courts are not bound by the decisions of the European Court.This was confirmed in the outcome of Boyd v The Army Prosecuting Authority.However, in the case of R v Secretary of the St ate for the domicile Department, a caseconcerning an alledged breach of Article 8 of the ECHR it was held, in reliance onthe cases of Campbell v joined Kingdom and R. v Secretary of the State for theHome Department (Ex p. Leech), that when assessing the validity of an executiveaction, the court must rule on the proportionality of the executive decision in question.Article 8(2) of the ECHR states There shall be no interference by a globe authoritywith the exercise of this right except such as is in accordance with the law of nature and isnecessary in a democratic society in the interests of national security, public safety orthe economic well-being of the country, for the prevention of disorder or crime, forthe protection of health or morals, or for the protection of the rights and freedoms ofothers. The Queens Bench held that where an executive decision sought toinfringe Article 8(1) of the ECHR, that an investigation into the proportionality of thatdecision is required by virtue of Article 8(2) of that Convention.From these modern case decisions it is today clear that the Human Rights Act1998 has had a major impact on the pre-existing public law framework of the linkedKingdom. The Courts are bound to interpret national legislation in accordance withthe rights contained in the ECHR, even where this means that national legislation hasto be interpreted beyond its literal or goal-directed scope, and the Courts have showincreasing willingness to be influenced by European jurisprudence when interpretingthe Convention. On swipe of this, it seems that the case of R v Secretary of the State forthe Home Department has introduced proportionality as a new grounds forcommencing a judicial review of an exectuive decision.To this extent, the Human Rights Act 1998 must be considered a tenet of theconstitution of the unite Kingdom, at least to the extent that it impacts upon thescope of the legitimate powers of the executive. However, that being said, section 3(2)of t he Human Rights Act and the interpretation of this section by the House of Lordsin the case of R v A (No.2) does suggest that where the legislative enact legislationwhich purports to expressly limit the scope of a Convention right, the Courts are notentitled to rules in favour of a claimant, by reinterpreting that cookery.Let us right off ask ourselves an important question For an Act to be thoroughgoing surelyit must be the case that the legislature cannot bypass its nutriment, while it remains inforce, simply by indicating its intent to do so, or acknowledging that it does so?Let us therefore turn to examine how the Courts deal with cases where legislation iscompletely incompatible with the rights conferred under the ECHR, or where thegovernment have acknowledged that a new Bill is incompatible with the ECHRIn regards to incompatible legislation, section 4(2) of the Human Rights Act 1998states If the court is satisfied that a provision is incompatible with a Conventionright, i t may advance a declaration of that incompatibility. Section 4(4) of the Act goeson to provide that If the court is satisfied- (a) that the provision is incompatiblewith a Convention right, and (b) that (disregarding any possibility of revocation) theprimary legislation concerned prevents removal of the incompatibility, it may make adeclaration of that incompatibility. The effect of such a declaration, however, isneither to render that legislation handicap and ineffective, nor to provide the parties inthe case with a form of redress, but rather to alert the executive that the legislation inquestion is incompatibe. Despite the fact that the Courts have made it clear that adeclaration of incompatibility is a last resort, in order to argue that the HumanRights Act 1998 is a complete enactment, it must be shown that where thelegislative have introduced legislation which is incompatible with its provisions, thatthey have acted beyond their constitutional powers.In regards to statemen ts of compatibility, it is clear that the legislature are legallyentitled to enact a Bill without such a statement, as per s19(1)(b) of the 1998 Act. Anexample of such an Act is the Sexual Offences Act 2005. This must be deemed to antagonise the UKs committal to abiding by the rights enshrined in the ECHR.Earlier in this essay we have asked the question For an Act to be constitutional surelyit must be the case that the legislature cannot bypass its provisions, while it remains inforce, simply by indicating its intent to do so, or acknowledging that it does so? Inlight of the fact that the Act does not impose any duty of action on the executive toamend incompatible legislation, nor to make sure legislation is compatible before it isenacted, it cannot be said to undermine the constitutional nature of this Act becausethe legislature are not acting away(p) of the scope of their powers in the legislation.If this argument is correct, then we must ask ourselves what characteristics of th eHuman Rights Act 1998 suggests that it has set in motion a place at the heart of theconstitution of the United Kingdom?In the case of Thoburn v Sunderland City Council, Lord nicety Laws defined aconstitutional statute in the following terms In my opinion a constitutional statuteis integrity which (a) conditions the legal relationship between citizen and State in somegeneral, overarching manner, or (b) enlarges or diminishes the scope of what wewould now regard as fundamental constitutional rights. (a) and (b) are of necessityclosely related it is difficult to think of of an instance of (a) that is not also an instanceof (b).We have already seen how the Courts have used the Act to give significant force tothe ECHR, interpreting legislation widely to give effect to the Convention rights,allowing decisions by public bodies to be challenged for being a disproportionatebreach of Convention rights and only issuing declarations of incompatibility as a lastresort. These features of th e Human Rights Act 1998 and the way it has been appliedby the Courts certainly satisfies Lord Justice Laws definition.This supports the contention that the Human Rights Act 1998 is part of theconstitution of the UK, but does not confirm whether it has truly found a place at theheart of the constitution. Let us now look at recent political developments that serveto undermine this assertionIn England there is currently much talk roughly the possibility of repealing the HumanRights Act. For example, in 2006 David Cameron made a public statement that theConservatives would scrap, reform or counterchange the Human Rights Act unless thegovernment could reach a memorandum of understanding to enable foreigncriminals to be deported to their countries of origin. Guardian, May 12 2006.Likewise, a recent Review of the Implementation of the Human Rights Act, stated itis worthy considering briefly an option which has been subject to recent comment. Thiswould be the option of repealing the Huma n Rights Act and enacting a crystallize set offundamental rights which would not, in law, be connected to the EuropeanConvention on Human Rights. The tip is that these rights could be given somesort of entrenched or superior status in our constitution. DCA, 2006, p5.These sources strongly imply that the Human Rights Act 1998 has not found a placein the heart of our constitution, disdain there being little doubt about its constitutionalnature. In the final section of this paper, let us turn our attention to the place of theHuman Rights Act 1998 in the constitution of Scotland, and its prospects for thefuture in this devolved jurisdictionIn Scotland, the purposes of the Human Rights Act 1998 were given greater force bythe introduction of the Scotland Act 1998. Section 29 of this Act states (1) An Actof the stinting Parliament is not law so far as any provision of the Act is outside thelegislative competence of the Parliament. (2) A provision is outside that competenceso far as any of the following paragraphs apply (d) it is incompatible with any ofthe Convention rights or with Community law. This goes much further than theHuman Rights Act 1998 which allows UK Parliament to enact incompatibleprovisions as long as an assessment has been made in accordence with s19(1)(b) ofthe Act.Coupled with the recent enactment of the frugal Commission for Human Rights Act2006, which established the Scottish Commission for Human Rights, it seems clearthat the ECHR has found a central place in the constitution of the devolvedjurisdiction of Scotland. However, in response to the statement at the covert of thispaper, we can hardly say that these developments put the Human Rights Act at theheart of the constitution of the United Kingdom after all, these developments do notpertain to the Human Rights Act 1998, except in so far as this Act is used to definethe Convention rights which are to be adhered to by the Scottish executive.ConclusionIn conclusion, whilst the Human Risght s Act 1998 can certainly be described as aconstitution enactment, recent political developments in the UK which suggest thatthis Act might soon be repealed undermine the contention that the 1998 is at theheart of the constitution of the United Kingdom.In Scotland, the Human Rights Act 1998 can only be said to be at the heart of theconstitution to the extent that this Act is referred to by the Scotland Act 1998, an Actwhich goes much further in granting legal protection to scotish citizens for breachesof Convention rights than the 1998 Act.