Human Rights
Human rights refer to the natural or basic rights and freedoms to which all people are entitled to. Traditionally, the rights and freedoms of citizens were protected by an Act of Parliament or by the judges in developing the common law. Prior to World War II, the convention for the protection of human right and freedom was drafted in 1950s by the Council of Europe. It was drafted because of disgust with fascism and an anxiety to protect basic freedom. On 1953, it has developed to become an international treaty, which all 47 countries of the continent of Europe are bound by the European Convention of Human Rights and Fundamental Freedoms 1950, also known as ECHR. United Kingdom (UK) was one of the first countries to sign the Convention in November 1950. Although it entered into force in the UK on 3rd Sept 1953, UK chose not to incorporate its terms into domestic law. Therefore UK was only bound to ECHR on the matter of international law and not within the domestic legal system. During 1960s, there are few parties concerned had campaigned for the enactment for Human Rights Act in UK. These parties are the commentators and public interest groups. However, due to several criticisms and the reluctant of UK government to pass such legislation, the HRA did not enact until 1998. Though the convention did not incorporate into domestic law, UK did recognize the authority of European Court of Human Rights (ECtHR) to hear and adjudicate complaints from UK citizens. In 1997, the newly elected Labour Government promised to introduce a human right bill to Parliament. As a result, The Human Right Act 1998 received Royal Assent on 9 November 1998 and came into full effect in the UK on 2nd Oct 2000.
For the past 20 years or so, UK governments have lost more than 40 cases at ECtHR and have violated 11 of the 15 rights set out in Human Rights Act 1998. This records show that there are several areas in UK which are incomplete as some of them does not provide adequate human rights. This was laid down in several cases which concerned with the significance of Article 6, 8 and 10. Article 6(1) concerns the rights to fair trial. This is to ensure that everyone has a fair trial under civil and criminal trial. There are few notable cases under this article, whereby the court held that there was a breach of Article 6 and passing a new law to amend it. This was shown In Golder v United Kingdom (1975) and Tuna Begum v Tower Hamlets (2003). However, in some cases, ultimately, it is the judges that determine whether this country’s laws are compliant with the ECHR as seen in R v Horncastle and Others (2009). This was, once, claimed by AV Dicey’s in the rule of law that our constitutional rights are given by the courts as a result of cases brought before them. Therefore, it is the court that decides which rights are we entitled to, the European Convention of Human Rights merely enhance the law.
Article 8 provides that everyone has the right to respect his private and family life, his home and correspondence. Article 8 may be subject to limitation which is necessary for democratic society. This is an entirely new law in UK as previously the UK government did not provide any protection of privacy to the citizens as shown in Malone v UK (1984). Since the incorporation of Rights in domestic law, the Article 8 has provided a better protection of their privacy under ECHR. This can be seen in the case of Ghaidan v Mendoza (2004) and B v UK (2004) where it concerned with homosexual. To add more, in 2002, the European Court of Human Rights found that UK had breached Art.8 and Art.14 by unjustly dismissed several soldiers because of their sexuality as shown in the case of Lustig- Prean v UK (2000). Therefore, it can be argued that Article 8, now given statutory recognition by Human Rights Act 1998, has increased protection for privacy and family life.
Article 10 covers the right to hold opinions and to receive and express information and ideas. Although Article 10 guarantees the right to “receive information”, it does not require the State to provide information that are no longer accessible (Leander v Sweden (1987).The right is restricted in the interests of national security or public safety, for the prevention of disorder or crime or to prevent the disclosure of confidential information, as shown in R (on the application of Farrakam) v Secretary of State for the Home Department (2002). The court was prepared to grant a wide margin of appreciation if it is in the context of public moral justification. Thus, in Handyside v UK, a prosecution under the Obscene Publication Act 1959 was held to be a legitimate as a means of protecting the public (1976).
The incorporation of the Convention Rights into domestic law had been considered revolutionary on the fact that the convention rights are more directly applicable. The enactment of Human Rights Act 1998 means that UK citizens no longer have to bring their case all the way up to Starsbourg court, which proved to be costly and inconvenience to the citizens. The citizens can, now, sue the state for violation of human rights in British court and will be awarded a quicker and effective remedy given by the national court. Besides that, the act will give people a clearer view of their fundamental right. This is to ensure that people will act within their right and act responsibility toward others. Beside the point, the fact that the government could not always act at the best interest of all group in society, the enactment of Human Rights Act is necessary so as to make informed and sensible provision to protect the citizens. For example, in 2002, there is one human rights case which was brought against UK regarding a widowers’ entitlement to benefits under Article 14. Due to the ruling by European Court of Human Rights, the law today had already changed to either gender will entitled the same bereavement benefits.
An important point to note is that Human Right Act can be relied on by residence of England and Wales regardless of whether or not they are UK citizens or foreign nationals. The refugees and asylum-seekers will now gain additional protection of Article 3 of the European Convention of Human Rights. This is often deemed as discretionary and cannot be challenged at appeal. In addition, it was argued that the Human Rights Act 1998 allowed the foreign convicts to stay in UK. More than 200 foreign prisoners, including hijacker, the terror suspect, the sex attacker or the cheated deportation claimed that they were protected under Article 8 of the Human Rights Act 1998. A few examples of controversial cases have been invoked in relation to this Article. One of those is where the nine Afghans national, who had hijacked a plane, were allowed to stay in UK after the High Court ruled that deporting them will breached their human rights. Besides that, a Nepalese man, who was part of a gang, brutally beat another man to death before throwing him in the River Thames, and has won the right to stay in Britain. It is easily to conclude that under the catchall “right to family life” of the Human Rights, this clause was so often abused by every killer, hijacker, terror suspect and immigrant who wants to stay in Britain by claiming that it would breached the Human Right Act if the government decide to deport him as that would separate him from his parents, who is living in Britain. Therefore, the Human Rights Act 1998 instead of protecting the citizens’ rights, it has turned Britain into a topsy turvy country where the criminal is protected from consequence and the citizens will have to face the risk of life.
The traditional concept of Parliamentary sovereignty was that Parliament can make or unmake any law whenever it wants. Further to this, Act of Parliament rules over previous legislation, common law and international law. However, it may well be the case that the modern idea of Parliamentary sovereignty is well differ from the traditional concept. The academic had argued that the enactment of Human Rights Act 1998 has had a dramatic effect on Parliamentary Sovereignty. This was supported by Baroness Hale in Jackson v Attorney General in which she claimed that for the time being, Parliament’s powers have been limited by the Human Rights Act 1998. The Human Rights Act provides the UK citizens for the first time to enforce their rights in national court, while, at the same time trying to uphold the power of Parliament. This could be the section 3 and section 4 of the Human Rights Act 1998, where the Act serves to maintain a balance between convention right and the Act of Parliament.
Theoretically, Human Right Act seems to prevail over Parliament through doctrine of supremacy. However, the reality is the Human Rights Act is weaker. This can be explained by where the court can only grant incompatibility. S.3 (1) of Human Rights Act 1998 provides that “so far as possible, primary legislation and subordinate legislation must interpret in line with Convention Rights.” If the court held that the legislation is in breach of the Human Rights Act, it can only declare incompatible and not invalidate the Act of Parliament. The court can pass a notice of incompatibility to the Parliament and suggests an amendment of law on certain areas to be made. In BBC Radio 4’s Today programme, Jack Straw stated that even if the court held that a piece of legislation is incompatible with Convention rights, the law is still enforceable until the Parliament changes it. Technically, Parliament has no obligation to amend the legislation. This was shown in Brogan v UK (1988), whereby the government refused to change the law even though the Act was found to violate Art.5. They claimed that it is for national security. Besides that, the fact that the court cannot question an Act of Parliament as endorsed by House of Lords in Pickin v British Railway Board, means that the court must apply the Act irrespective of what the judges think. Thus we can see that the powers of the courts are still limited to make a declaration that the legislation is incompatible. Even if they could grant a declaration of incompatibility, the Parliament does not have the obligation to change the law. The Parliament is still sovereign despite of the laws that set out by the Human Rights Act.
However, one should not neglect the fact that s.3 requires a very different approach to interpretation to what English courts are accustomed. The judges now are more likely to prompt a shift towards purposive interpretation than finding the literal meaning of the words. An overuse of s.3 could limit Parliamentary sovereignty as the Act of Parliament will be subject to the judges’ interpretation, in which they might be changing or expanding the meaning of the legislation as seen in Ghaidan v Mendoza. Besides that, most of the time Parliament will amend the incompatible legislation as seen in Bellinger v Bellinger (2001) and A &ump; another v Secretary of State for the Home Department (2004). Therefore, the Parliament may not be that supreme anymore as now s.3 of the 1998 Act has bringing in wider interpretation, the intention of Parliament is no longer the sole deciding factor. The decision, now, needs to be examined in the light of the new rules, such as s.3 (1) of the 1998 Act.
Due to some of the problems in HRA 1998, many parties have asked for a scrapped of HRA 1998 and replaced by a British Bill of Rights. However, the question is whether a UK Bill of Rights is necessary for a society nowadays.
The supporter of Bills claimed that the entrenchment of bills could provide a better public awareness. The provision in a new bill will give people greater clarity of their rights and responsibilities and the expectation of citizens to get from public authorities or from each other. Besides that, it is necessary to increase and update rights. The ECHR is 60 years old and some of its language and provisions are outdated, therefore UK needs a Bill which will cover the present situation.
Furthermore, the entrenchment of UK bill could keep a check on the executive. The fact that the government sit in majority means that the Government proposals will almost invariably passed. For example in 1980s, only one Government Bill was defeated. Besides that, the government can pass any law they want. This can be seen where the Criminal Justice and Public Order Act 1994 must be applied by the courts even it was against the Convention Rights. However, with the entrenchment of Bills, it would curb executive powers as the court cannot simply apply laws which conflict with it. Thus, Bill of Rights ensure that the laws will work better to protect the individual against the powerful
The conservative party claimed they would repeal the HRA and replaces it with a British Bill Of Rights if they are in power. The leader of the Party, David Cameron, argued that the HRA is obstructing the fight against Crime and terrorism. This can be seen where the HRA prevent certain deportation. The government unable to deport those terror suspects as this will breach Art.3 of HRA.
On the other hand, it was claimed that the entrenchment of bill is unnecessary and confusing .It is unnecessary because the Human Rights Act already cover most of the areas in this country. The fact that it could cause confusion because there will be two sets of fundamental rights, Human Rights Act 1998 and British Bill of Rights. The government still has to comply with all the right in European Courts of Human Rights as UK is one the member of European Union and the citizens still able to bring cases to strasbroug.
In addition, it will also increase the power of judiciary, who are likely to interpret the Bill too narrowly which influenced by their class-based view of rights as seen in Bowers v Hardwick. The language of Bill is open and ambiguous. This gives the judges a wide discretion in interpretation and it will eventually lead to uncertainty in law. Bill of Rights also required the judges to decide the relative important of protected rights if any two of them are clashing. For example, the freedom of expression of a political party contravenes racial discrimination or the right to life of a foetus overrides the mother’s right and liberty. Some would argue that question which concern with political should not be answered by the judiciary but the politician. Otherwise, the judiciary will become politicized.
Some academic argued that merely granting rights does not necessary means individual freedom and empowerments are secure. The right granted must supported by economic and social provision. Imbalance in power in society means that the powerful can take advantages on those who are less powerful. For example, equal payment of women in work may results the employers to recruit more of the male workers. Therefore, it might be that Britain Bill of rights is not as powerful as Human Rights Act 1998 to protect the individual freedom and rights.
In summary,
For the past 20 years or so, UK governments have lost more than 40 cases at ECtHR and have violated 11 of the 15 rights set out in Human Rights Act 1998. This records show that there are several areas in UK which are incomplete as some of them does not provide adequate human rights. This was laid down in several cases which concerned with the significance of Article 6, 8 and 10. Article 6(1) concerns the rights to fair trial. This is to ensure that everyone has a fair trial under civil and criminal trial. There are few notable cases under this article, whereby the court held that there was a breach of Article 6 and passing a new law to amend it. This was shown In Golder v United Kingdom (1975) and Tuna Begum v Tower Hamlets (2003). However, in some cases, ultimately, it is the judges that determine whether this country’s laws are compliant with the ECHR as seen in R v Horncastle and Others (2009). This was, once, claimed by AV Dicey’s in the rule of law that our constitutional rights are given by the courts as a result of cases brought before them. Therefore, it is the court that decides which rights are we entitled to, the European Convention of Human Rights merely enhance the law.
Article 8 provides that everyone has the right to respect his private and family life, his home and correspondence. Article 8 may be subject to limitation which is necessary for democratic society. This is an entirely new law in UK as previously the UK government did not provide any protection of privacy to the citizens as shown in Malone v UK (1984). Since the incorporation of Rights in domestic law, the Article 8 has provided a better protection of their privacy under ECHR. This can be seen in the case of Ghaidan v Mendoza (2004) and B v UK (2004) where it concerned with homosexual. To add more, in 2002, the European Court of Human Rights found that UK had breached Art.8 and Art.14 by unjustly dismissed several soldiers because of their sexuality as shown in the case of Lustig- Prean v UK (2000). Therefore, it can be argued that Article 8, now given statutory recognition by Human Rights Act 1998, has increased protection for privacy and family life.
Article 10 covers the right to hold opinions and to receive and express information and ideas. Although Article 10 guarantees the right to “receive information”, it does not require the State to provide information that are no longer accessible (Leander v Sweden (1987).The right is restricted in the interests of national security or public safety, for the prevention of disorder or crime or to prevent the disclosure of confidential information, as shown in R (on the application of Farrakam) v Secretary of State for the Home Department (2002). The court was prepared to grant a wide margin of appreciation if it is in the context of public moral justification. Thus, in Handyside v UK, a prosecution under the Obscene Publication Act 1959 was held to be a legitimate as a means of protecting the public (1976).
The incorporation of the Convention Rights into domestic law had been considered revolutionary on the fact that the convention rights are more directly applicable. The enactment of Human Rights Act 1998 means that UK citizens no longer have to bring their case all the way up to Starsbourg court, which proved to be costly and inconvenience to the citizens. The citizens can, now, sue the state for violation of human rights in British court and will be awarded a quicker and effective remedy given by the national court. Besides that, the act will give people a clearer view of their fundamental right. This is to ensure that people will act within their right and act responsibility toward others. Beside the point, the fact that the government could not always act at the best interest of all group in society, the enactment of Human Rights Act is necessary so as to make informed and sensible provision to protect the citizens. For example, in 2002, there is one human rights case which was brought against UK regarding a widowers’ entitlement to benefits under Article 14. Due to the ruling by European Court of Human Rights, the law today had already changed to either gender will entitled the same bereavement benefits.
An important point to note is that Human Right Act can be relied on by residence of England and Wales regardless of whether or not they are UK citizens or foreign nationals. The refugees and asylum-seekers will now gain additional protection of Article 3 of the European Convention of Human Rights. This is often deemed as discretionary and cannot be challenged at appeal. In addition, it was argued that the Human Rights Act 1998 allowed the foreign convicts to stay in UK. More than 200 foreign prisoners, including hijacker, the terror suspect, the sex attacker or the cheated deportation claimed that they were protected under Article 8 of the Human Rights Act 1998. A few examples of controversial cases have been invoked in relation to this Article. One of those is where the nine Afghans national, who had hijacked a plane, were allowed to stay in UK after the High Court ruled that deporting them will breached their human rights. Besides that, a Nepalese man, who was part of a gang, brutally beat another man to death before throwing him in the River Thames, and has won the right to stay in Britain. It is easily to conclude that under the catchall “right to family life” of the Human Rights, this clause was so often abused by every killer, hijacker, terror suspect and immigrant who wants to stay in Britain by claiming that it would breached the Human Right Act if the government decide to deport him as that would separate him from his parents, who is living in Britain. Therefore, the Human Rights Act 1998 instead of protecting the citizens’ rights, it has turned Britain into a topsy turvy country where the criminal is protected from consequence and the citizens will have to face the risk of life.
The traditional concept of Parliamentary sovereignty was that Parliament can make or unmake any law whenever it wants. Further to this, Act of Parliament rules over previous legislation, common law and international law. However, it may well be the case that the modern idea of Parliamentary sovereignty is well differ from the traditional concept. The academic had argued that the enactment of Human Rights Act 1998 has had a dramatic effect on Parliamentary Sovereignty. This was supported by Baroness Hale in Jackson v Attorney General in which she claimed that for the time being, Parliament’s powers have been limited by the Human Rights Act 1998. The Human Rights Act provides the UK citizens for the first time to enforce their rights in national court, while, at the same time trying to uphold the power of Parliament. This could be the section 3 and section 4 of the Human Rights Act 1998, where the Act serves to maintain a balance between convention right and the Act of Parliament.
Theoretically, Human Right Act seems to prevail over Parliament through doctrine of supremacy. However, the reality is the Human Rights Act is weaker. This can be explained by where the court can only grant incompatibility. S.3 (1) of Human Rights Act 1998 provides that “so far as possible, primary legislation and subordinate legislation must interpret in line with Convention Rights.” If the court held that the legislation is in breach of the Human Rights Act, it can only declare incompatible and not invalidate the Act of Parliament. The court can pass a notice of incompatibility to the Parliament and suggests an amendment of law on certain areas to be made. In BBC Radio 4’s Today programme, Jack Straw stated that even if the court held that a piece of legislation is incompatible with Convention rights, the law is still enforceable until the Parliament changes it. Technically, Parliament has no obligation to amend the legislation. This was shown in Brogan v UK (1988), whereby the government refused to change the law even though the Act was found to violate Art.5. They claimed that it is for national security. Besides that, the fact that the court cannot question an Act of Parliament as endorsed by House of Lords in Pickin v British Railway Board, means that the court must apply the Act irrespective of what the judges think. Thus we can see that the powers of the courts are still limited to make a declaration that the legislation is incompatible. Even if they could grant a declaration of incompatibility, the Parliament does not have the obligation to change the law. The Parliament is still sovereign despite of the laws that set out by the Human Rights Act.
However, one should not neglect the fact that s.3 requires a very different approach to interpretation to what English courts are accustomed. The judges now are more likely to prompt a shift towards purposive interpretation than finding the literal meaning of the words. An overuse of s.3 could limit Parliamentary sovereignty as the Act of Parliament will be subject to the judges’ interpretation, in which they might be changing or expanding the meaning of the legislation as seen in Ghaidan v Mendoza. Besides that, most of the time Parliament will amend the incompatible legislation as seen in Bellinger v Bellinger (2001) and A &ump; another v Secretary of State for the Home Department (2004). Therefore, the Parliament may not be that supreme anymore as now s.3 of the 1998 Act has bringing in wider interpretation, the intention of Parliament is no longer the sole deciding factor. The decision, now, needs to be examined in the light of the new rules, such as s.3 (1) of the 1998 Act.
Due to some of the problems in HRA 1998, many parties have asked for a scrapped of HRA 1998 and replaced by a British Bill of Rights. However, the question is whether a UK Bill of Rights is necessary for a society nowadays.
The supporter of Bills claimed that the entrenchment of bills could provide a better public awareness. The provision in a new bill will give people greater clarity of their rights and responsibilities and the expectation of citizens to get from public authorities or from each other. Besides that, it is necessary to increase and update rights. The ECHR is 60 years old and some of its language and provisions are outdated, therefore UK needs a Bill which will cover the present situation.
Furthermore, the entrenchment of UK bill could keep a check on the executive. The fact that the government sit in majority means that the Government proposals will almost invariably passed. For example in 1980s, only one Government Bill was defeated. Besides that, the government can pass any law they want. This can be seen where the Criminal Justice and Public Order Act 1994 must be applied by the courts even it was against the Convention Rights. However, with the entrenchment of Bills, it would curb executive powers as the court cannot simply apply laws which conflict with it. Thus, Bill of Rights ensure that the laws will work better to protect the individual against the powerful
The conservative party claimed they would repeal the HRA and replaces it with a British Bill Of Rights if they are in power. The leader of the Party, David Cameron, argued that the HRA is obstructing the fight against Crime and terrorism. This can be seen where the HRA prevent certain deportation. The government unable to deport those terror suspects as this will breach Art.3 of HRA.
On the other hand, it was claimed that the entrenchment of bill is unnecessary and confusing .It is unnecessary because the Human Rights Act already cover most of the areas in this country. The fact that it could cause confusion because there will be two sets of fundamental rights, Human Rights Act 1998 and British Bill of Rights. The government still has to comply with all the right in European Courts of Human Rights as UK is one the member of European Union and the citizens still able to bring cases to strasbroug.
In addition, it will also increase the power of judiciary, who are likely to interpret the Bill too narrowly which influenced by their class-based view of rights as seen in Bowers v Hardwick. The language of Bill is open and ambiguous. This gives the judges a wide discretion in interpretation and it will eventually lead to uncertainty in law. Bill of Rights also required the judges to decide the relative important of protected rights if any two of them are clashing. For example, the freedom of expression of a political party contravenes racial discrimination or the right to life of a foetus overrides the mother’s right and liberty. Some would argue that question which concern with political should not be answered by the judiciary but the politician. Otherwise, the judiciary will become politicized.
Some academic argued that merely granting rights does not necessary means individual freedom and empowerments are secure. The right granted must supported by economic and social provision. Imbalance in power in society means that the powerful can take advantages on those who are less powerful. For example, equal payment of women in work may results the employers to recruit more of the male workers. Therefore, it might be that Britain Bill of rights is not as powerful as Human Rights Act 1998 to protect the individual freedom and rights.
In summary,