The Human Rights Act ’98 and Judges Essay
The Human Rights Act ’98 and Judges
The Human Rights Act ’98 and Judges
Rights that protect human beings and the extent of legality of what they are entitled to as people are a core part of each constitution globally. The extent of human rights protection varies from country to country, with total democracies having most human rights that encompass freedom of speech and expression among other freedoms. These are the most sovereign of laws as they express how liberal and powerful the majority can be as opposed to the minority being powerful in some countries or kingdoms. In some countries, the part of the constitution(just answer legal) is referred to as the Bill of Rights. In the United Kingdom, they are referred to as the human rights act of 1998. It was previously referred to as the Bill of rights though. As expressed in the UK parliament official website, the Human rights Act came into life in 1998 to “bring rights home” (www.parliament.uk, 2014).
Section 3 of the1998 Human Rights act has equally been center of controversy and light about various issues as who decides the extent to which the human rights stretch. The human rights act expresses the human rights that are contained in the European Convention(Jeeves) on Human rights as part of the UK laws in three forms as follow:
The UK laws should be interpreted in so far as possible to do so, to reflect the consideration for the human rights act.
If Parliament passes an act that is in contravention with the Human rights act, the courts have the mandate to declare such acts as unconstitutional. However, no matter the court decision, the law will be valid and effective as the human rights law upholds the sovereignty of the parliament. Only by parliamentary amendments can change such a law be changed. This section gives the coots an advisory role on constitutionality of laws and acts passed by the parliaments. Courts cannot block implementation of these laws and acts, even if it were in the interest of the people.
Section 3 states that is considered unlawful for public authorities to act or make any decisions in contravention to the human rights. This section is with exception of cases where there are statutory orders or duty to act as so. Those offended by these unlawful acts has the right to sue perpetrators of the breach or the law breakers themselves. From the above paraphrases of the laws, it is evident that the law does not confer powers to the courts to repeal sections of the law considered unconstitutional. Other nations likethe United States and Germany in their Bill of Rights and Basic law respectively give courts such power.
The third section of human rights act is controversial as it acts in contravention with some of the other key UK conventions such as the European Communities act of 1972 (liberty 80, 2014). The EU act gives a node to disregard or overriding the UK laws which are in opposition to the European Union law. As such, the UK courts, in interpretation of Human rights policies and questions, must make considerations for the European human rights court decisions. Such considerations should only be made to the extent of their relevance. This statute allows the courts to make reference to decisions made in consideration to the international statutes that the UK is party to, and in this case, the European law. However, this freedom is by choice of the judges to decide the relevant cases and their degree of relevance to cases being presented to them.
In the UK laws, it is usually required that the minister in charge of the constitution or bill in the upper and lower houses give his or her take on a bill’s constitutionality before the second reading. If it is not compatible with human rights laws, he or she reserves the right to advice on or make remedial orders regarding amendments before the bill is passed. The Joint committee on Human rights is responsible for scrutinizing bills for their compatibility with the human rights. This body plays a crucial law in ensuring that accountability is upheld in decision making within government. The role court plays is to interpret the law and advice amendments to the two bodies, the Joint committee on Human Rights and Parliament. In cases that require urgent intervention, the judges could advice the Minister to draft and issue remedial orders to amend the parts of a law that are in contradiction with the human rights act. These remedial orders can then be tabled in both houses for approval. In cases that require extreme urgency, the remedial orders could set stage for interim orders which become effective on approval by parliament within 120 parliamentary days, unlike the normal remedial orders that have to follow the parliamentary calendar. The normal orders have to get a slot in parliamentary debates just like other issues of law making.
The courts apply the section 3 of the human rights act through 3 forms of interpretation. These forms of interpretation are ‘reading in’, ‘reading out’, and ‘reading down’.
Reading in means inserting words where they did not exist within a statute. This form occurs when a judge finds that a certain condition is not provided within law, and in inhere analysis of international cases finds a similar situation within the European Union law, the judge will apply the case whenever and wherever it is relevant.
Reading out is applied wherever words are left out from a statute. Reading down is applied to suit a particular situation or portray a particular meaning. Whatever the case, courts are not allowed to conflict with the law’s intent. Whenever interpretation is conflicting, the law could be declared incompatible, and for that reason, courts are usually slow to jump into reading out the laws. The law is evidently very mysterious and offers no easy way of going about different cases. The controversy also encompasses the much questioned sovereignty of the Parliament over the law. They are the law makers and no one else is allowed to fault and change the same.
Recommendations About Whether Section 3 Should Be Changed. If So,How?
Supremacy of a single body, no matter whatever body it is, is very dangerous for any country. It is advisable to put sovereignty in a number of bodies that can regulate themselves. The disadvantages of centralized power are known all over the world.
In some quarters, one could be right to say that since members of parliament are elected by the people, then it is logical to think that they represent the will of the people at heart and in their thoughts. One may argue that putting sovereignty in parliament is putting sovereignty in the hands of the people, which is the true intent of a democracy. There are merits and demerits of letting the parliament be absolute law makers.
An advantage to this current UK system is that it only takes act to change an entire law, something that could also be a disadvantage. In cases where new situations arise and legislation is required, other bodies will only form policies, while the minister and Prime minister issue remedial and executive orders respectively. However, such methods provide only temporary solutions. Laws are permanent unless changed by the parliament. However, the legislators are human beings with their selfish personal interests. The legislators could desire something that is ill intent in the eyes of the public. If there is no regulatory authority over the parliament, then whatever the ill intended law in their thoughts will have to be followed without regard to the consequences. In this thought, the court has served as a good regulatory body in various countries. Since they are mandated by the constitution to interpret law, the judges can help the country keep off bad laws and policies if mandated to do so.
Another reason why the court needs to be put as a regulatory body on behalf of the public is the length of acts passed by parliament. Usually, the acts passed by parliament are long and at times difficult to understand by the ordinary people. People in the law practice are used to the legal jargon, and are therefore best suited in interpreting the law. Therefore, even though the members of parliament are the mandated law makers, the judges ought to play regulatory as one cannot make and regulate the law at the same time.
Therefore, if the current human rights act is to be upheld, it should be amended to empower the judges and the entire judicial system to be supreme interpreters of the law. If they find that certain bill that has been passed by parliament contravenes the supremacy of the human Rights or the European Union law, they should be given power to bar its implementation until the contentious parts are removed. The contradictions within this section of the human rights act should therefore be removed and replaced with more sound and straight forward provisions that allow for accountability and transparency within all sections of the government.
Replacing Human Rights Act with the Human Rights Bill
There have been numerous debates in all levels of citizenry about a change of law from the human rights(www.parliament.uk, 2014) act to a Bill of rights. The act was introduced by Tony Blair’s government in order to give the courts in the United Kingdom a greater role in making decisions without having to refer to the Strasburg for recourse.
However, Mr. David Cameron, the current Prime Minister of Britain is all upbeat about the new law. In the Bill of rights, the Prime minister sought to entrench a bill of rights containing the core values, rights and responsibilities in the British law (Wright, 2014). What are the key inclusions of this new bill? One may ask.
The whole act is extracted from the European law on human rights. Meaning that UK citizens have been following general statutory that are general and do not focus on the British citizens. Therefore, this will be the first human rights bill in the recent times that takes care of citizens more locally. Implementation of this plan will help reduce the cases of unsatisfactory judgments, especially because people will be their own laws. It would give the Britishchance to add their suggestions and more rights 4(citizenshipfoundation.org.uk).
In the bill, all laws that express the true will of the people at heart should be passed. In previous cases, the human rights activities have been championing for the same rights. It would therefore be noble to include their contributions to the bill. In order to come up with a policy that embraces the above thoughts, then there need to be a public participation. The bill has to be put at a strategic place for people to access.
The Bill of rights is meant for the general public. It encompasses values that bring the UK citizens on the same level, while trying hard to remove discrimination of whatever kind. The European Union statutes have been tweaked enough to suit the UK situation, though there has still not been a version that fits the situation like a glove. One that has originated from people’s own contribution will serve better both on the macro and micro situations.
In the Bill of Rights to be introduced, in 2015 should be better than the Human Rights act of 1998. It should create a centre for regulation of the UK parliament, so that they are not absolute in their decisions. A channel should be created so that the courts are given more power to determine and advice on the constitutionality of the acts passed in a way thatthey will be heard.
Normally, Bill of Rights encompasses the rights of all citizens of a particular country. It usually touches on all aspects of human life and in whatever situations a citizen might find themselves in. They in clued both for the free citizens and those under incarceration, those sick and the healthy. The United Kingdom proposed Bill of Rights should be borrowed from countries with a similar population and similar situations, where the Bill has successfully worked. Such constitutions should advice the formation of the new statute. People will much more be protected if such areas are encompassed, and in the quest to enhance democratic interests are upheld, the courts be placed as a place to seek recourse on issues that seem controversial with passing of some laws that may be deemed draconian. These rights to participate in law making and amendment process should be a right of every citizen living in the UK.
Citizenshipfoundation.org.uk. (n.d.). Does the United Kingdingdom need a bill of rights. Retrieved january 22, 2014, from citizenshipfoundation.org.uk: http://www.citizenshipfoundation.org.uk/lib_comp_pdf/1016.pdf
Jeeves, A. (n.d.). What is the Purpose of the human rights act? Retrieved January 22, 2015, from Ask Jeeves: http://www.uk.ask.com/question/what-is-the-purpose-of-the-human-rights-act-1998
just answer legal. (n.d.). Questions About the Bill of Rights. Retrieved January 2015, 2015, from just answer legal: http://www.justanswer.com/topics-bill-of-rights/
liberty 80. (2014). How the Human Rights Act works. Retrieved January 22, 2015, from liberty 80: https://www.liberty-human-rights.org.uk/human-rights/what-are-human-rights/human-rights-act/how-human-rights-act-works
Wright, O. (2014, October 01). David Cameron to ‘scrap’ Human Rights Act for new ‘British Bill of Rights’. Retrieved January 22, 2015, from http://www.independent.co.uk: http://www.independent.co.uk/news/uk/politics/conservative-party-conference-cameron-announces-plans-to-scrap-human-rights-act-9767435.html
www.parliament.uk. (2014). From the Human Rights Act to a Bill of Rights? Retrieved January 22, 2015, from www.parliament.uk: http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-and-liberty/from-the-human-rights-act-to-a-bill-of-rights/
Subject: Law & Government,
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 27 November 2015
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