Human Rights Act 1998 Essay

The HRA 1998 provides powerful protection for individuals in m whatever aspects of their lives. * To what extent is this statement true? Illustrate your answer by reference to areas of truth with which you are familiar.Before 1998, the get together Kingdom did not have a piece of document that specified the basic proper(a)s of the English people. However, in the year 1950, the United Kingdom Government signed the European company on Human Rights, to protect peoples rights from abuses seen under Hitlers rule, following the Universal resolve on Human Rights made by the General Assembly of the United Nations in 1948. Even so, the European Convention on Human Rights had not sancti peerlessd and incorporated itself into law until 1998 when Parliament enacted the Human Rights Act.The Human Rights Act 1998 states that when judges are deciding shells in which a question about a Convention right has been brought forward, the court must take into account any judgment, decision, declarati on or advisory opinion of the European motor inn of Human Rights. This means that instead of a conflicting decision by the United Kingdom court, the court must follow decisions of the European salute of Human Rights.An example of this was seen in the case of Re Medicaments (No 2), Director General of Fair Trading v Proprietary Association of Great Britain (2001). The Court of Appeal had refused to follow the decision of the Supreme Court in the earlier case of R v Gough on grounds that it was slightly different to decisions of the European Court of Human Rights.Some Convention rights involve the right to life and liberty. phrase 2 of the Convention states that the law shall protect everyones right to life. It also recognizes that Member States have the right to impose the oddment penalty to those convicted of particular crimes. Article 3, on the other hand, states that no one shall be tortured or suffer inhumane or degrading preaching or punishment. Moreover, Article 4 announ ces that slavery is not allowed.Other examples include Article 5, which sets out that everyone has the right to liberty and that no one shall be deprive of it, except where the law allows arrest. In its subsection, the article provides that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be speedily decided by a court.The Convention rights that cover a persons right to a fair trial are Article 6 and Article 7. The former states that people have the right to a fair and public hearing within a reasonable time, for both civil and criminal cases. A case that conflicted this Article was the Sander v United Kingdom (2000) case whereby the European Court of Human Rights ruled that a defendant had not a fair trial because a juror was making racist remarks. Article 7, however, states that no one shall be found guilty of a criminal offence if his act was not a crime at the time it was committ ed. This means that the law whitethorn be changed to make acts of the type prohibited criminal offences in future. Nevertheless, it cannot look back to acts that have already been committed and declare them criminal offences.On rights to privacy, Article 8 states that every person has a right to respect his private and family life, his home and his correspondence. Articles 9, 10, 11, 12 and 14, alternatively, provide rights to other libertys. For example, Article 9 states that everyone has the right to freedom of thought, conscience and religion. Article 10 states that everyone has the right to freedom of expression in the form of words. Article 11 states that people have the right to freedom of imperturbable assembly and the freedom to associate with others. Article 12 states that everyone has the right to marry, whereas Article 14 states that all rights and freedom should exist without any discrimination on any ground. The archetypes would be sex, race, colour, language, religi on, political or other opinion, national or social origin, national minority, property, birth or status.However, despite the fact that courts have to read statute law and give it effect in a way which is synchronized with the rights in the European Convention of Human Rights, the Human Rights Act 1998 recognizes that some legislation may be worded in a way that makes it impossible to give effect to the Convention. In such a case, the court has to apply the legislation as it stands nevertheless may make a declaration of its incompatibility with the Convention.This was the case in H v Mental Health Review Tribunal (2001) in which it concerned the fact that the burden of proof was on a patient applying for release instead of being on State to justify the continuing the detention of a patient. It was a breach of Article 5 because it involved the liberty of a person. However, the domestic law was incompatible with the Convention. Therefore, the court could not give it effect. It could only declare its incompatibility.Usually, after a declaration of incompatibility is done, the Government will change the law. However, it is unnecessary for the Government to do so. In actuality, if Parliament wishes, it can pass novel legislation which conflicts the Convention. This is done by replacing the incompatible Act with a new Act of Parliament. If only a small part is incompatible, a sanative order may be done. This order acts as a statutory instrument, which amends the incompatible provision in order to comply with Convention rights. much(prenominal) an example would be in the case of A and another v Secretary of State for the Home Department (2004) The Supreme Court had declared that the Anti-Terrorism, hatred and Security Act 2001 was incompatible with the Convention. The Act allowed foreign nationals to be detained without trial indefinitely, where there was suspicion of their involvement in terrorist activity. The Court held that this breached both Article 5, which states the right to liberty, and Article 14, which states that there should be no discrimination on basis of nationality. This forced the Government to change the law and release the detained foreigners, however on fixed conditions.The reality of this is that while the Human Rights Act 1998 does indeed protect individuals, its power is fickle and can be overridden at any time. For example, for the Bill of Rights to be entrenched, a requirement of 75% or three quarters majority is needed. However, in the case of the Human Rights Act 1998, only a simple majority of 51 votes is required for the law to be amended or abolished.