HRA
The UK has long and proud history of recognizing rights and freedom it has protected human rights through documents such as magna carta 1215 and the bill of rights 1689 furthermore principles of human rights have also been protected under the common law thus it can be urged that Britain has helped in developing and fostering fundamental rights
However there have been certain issues with the protection of human rights in the UK the Magna Carta is silent on the right to be free from undue state interference in our personal life whereas the bill of rights 1689 does nothing to protect the principle of nondiscrimination or the right to free expression even though common law principles have been adequate in protecting human rights judges continue to suffer from democratic deficit which means they are reserved in question the government as they are not elected this specially becomes a problem in cases of national security where judges leave it upon the government to decide what the course of action should be this is illustrated by cases such as Liversidge vs Anderson and Malone vs commissioner of police in the first case the secretary of state have been allowed to arrest and detain individuals during the 2nd world war on mare suspicion of terrorism(without a warrant) even though this was a clear violation of human rights the majority of the judges in the house of lords stated that in such a situation involving matters of national security judges had to prioritize the opinion and actions of the government and would not prioritize the protection of human rights. In Malone the claimant urged that his right to privacy was breached when the police tabbed his phone the court however held that in matters of national security the government had a certain discretion that I could exercise and their actions were found to be legal.
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However it cannot be stated that judges that judges have never procted human rights there are countless case examples where the judiciary has proected human rights in Entick vs Carrington the court protected free speech and stated that it was illegal for government to trespass someones property without a warrant furthermore through judicial review courts have been able to protect fundamental rights in expartebugdaycay the court recognized the right to life whereas in the cases of expartedaly and exparte leech the court protected prisoners’ rights to communicate privately with their lawyers.
ECHR even though Uk has had a robust mechanism for the proctection of human rights it has not always been adequate internationally aswell after the 2nd world war it became clear that a better regime for the protection of human rights was required due to this the universal declaration of human rights came about in 1948 where by human rights were formally recognized in international law. The council of euorpe also realised that a treaty on human rights was needed for countries within euorpe which is why in 1950 they adopted a ECHR which became a standard for the protection of human rights in euorpe the uk signed the ECHR in 4th November 1950 but this did not apply automatically within their domestic framework due to uks dualist nature. Under international law the UK has been bound by the ECHR and the citizens of uk had the right to take cases directly cases directly to ECtHR since 1966.
It was clear that human rights protection within the UK were not enough and from 1970s to 1998 frequent calls were made for the uk to apply the ECHR within uk domestic law so that these rights could be enforceable in British courts the government in 1997 proposed the introduction of human rights bill which recive royal assent on November 9th 1998 and became the Human rights Act .
It must be noted that HRA 1998 implements the human rights which are to be found within the ECHR the ECHR states that the following rights must be proctected
Art 2 right to life art 6 right to fair trial and art14 proctection from discrimination and article 3 freedom from torture and inhumane or degrading treatment.
Hra 1998 contains provisions for the protection of these rights according to section 3 Judges have a responsibility to interpret all legislation in line with ECHR which means that even if a law is not complaint with the ECHR judges are supposed to interpret it so as to make it compliant this can be illustrated by the case of Ghaidan Vs Mendoza where the rent act 1977 stated that a protected lease could be transferred between husband and wife MR Mendoza partner died and the landlord wanted to evict him as the rent act did not apply to same sex couples the court recognized that the rent act violated principle of nondiscrimination under article 14 and the right to a private life under article 8 due to this judges used their interpretive powers under s.3 to give a wide interpretation to the rent act so as to make it complaint with the ECHR and stated that a protected lease could be transferred as between individuals as living between husband and wife.
S4 HRA 1998
S4 of the HRA allows judges to make a DOI however this is a remedy of last resort because the primary responsibility upon judges lies within s.3 if an existing act of parliament cannot be brought in line with the ECHR merely through interpretation then the court will make a DOI against that act and request the parliament to amend it to bring it in line with the ECHR. This can be illustrated by the Belmarsh case 2004 prison case where the court stated that anti terrorism and crime and security act 2001 was not compatible the ECHR as it allowed the home secretary to detain foreign nationals without a charge which was a violation of right to liberty as protected under article 5 of the ECHR the parliament then amended this act through the prevention of terrorism act 2005 as a result of DOI.
In bellinger vs bellinger mrs bellinger was born in 1946 and registerd as a male however in 1981 she underwent surgery to change her gender to become a women she also married mr bellinger at the time however the marriage act did not recognize a change in gender due to which their marriage was considered void the HOL tried to use their powers under sec 3 but interpretation in this case was not enough due to which they make a DOI as this law was in violation of article 14 and 8 of the ECHR Parliament then responded by making the gender recognition act 2004 and recognized that a person could legally change their gender.
However courts used their power under s.4 cautiously wherever they feel that their actions are violating the principle of PS you will not make a DOI . in R(Nicklinson)vs Ministry of justice 2014 the Supreme court was asked to judge whether the sucide act 1961 which criminalized insisting in killing someone was compatible with the ECHR or not the court stated that this was a controversial topic and refused to make a DOI as parliament has the right to make laws for the country and to adapt human rights accordingly the court took the view that such matters should be left to parliament as parliament has the right expertise to make clear laws for the state.
S6 HRA 1998
S6 requires public bodies to protect the rights under the convention this means that any public body in England is not allowed to violate the rights which are found under the ECHR s8 of the hra states that if a public body violates human rights it can be judicialy reviewed then the court will decide what remedy to give to the victim of a violation of human rights furthermore s19 of the HRA states that whenever a minister proposes a new bill in parliament they will have to make a statement saying that the bill is in complaince with the ECHR this is known as a declaration of compatibility
Is the HRA 1998 adequate?
Enactment of HRA 1998 has led to some positive results as it has allowed for the enforcement of conevtion rights within the UK this has allowed UK citizens to claims of a violation of human rights to their own domestic courts.
Furhtermore the ECHR has an impressive track record for the protection of fundamental rights and includes a wide range of rights which need to be proctected the jurisprudence of the ECHR in cases such as chahal vs uk shows that article 3 which provides for a prohibition on torture and inhumane and degrading treatment is significant and the court may even stop an individuals deportation if there is a chance that he would be tortured in his home state. Furthermore recent case law of the ECHR shows that they are willing to protect a wide range of rights in catt vs Uk whether the police had retained personal data of the applicant who had attended demonstrations but had no record of violence was a violation of article 8 of the ECHR .nonetheless in recent years there has been increasing debate on whether the HRA 1998 must be repealed and should be replaced with the bill of rights in march 2011 a commission on bill of rights was established to investigate whether a human rights bill for UK should be drafted or not it found that many citizens were not in favor of domestic bill of rights because it was unnecessary .and public confidence within a new bill of rights have to be gained by showing that it provides the same protection such as those which are found in the ECHR due to this it is unclear whether UK will move towards establishing its own bill of rights as the HRA 1998 has been adequate. the difficulty in repealing HRA 1998 has been highlighted in recent years when David Cameron stated that he would repeal the HRA in his 1st 100 days in office which was not successful thus it can be concluded that the HRA remains to be a significant constitutional act which protects fundamental rights in the UK adequately.
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