Common Law Reasoning and Institutions
‘The HRA 1998 is being used for purposes not originally intended by its proponents.’ Discuss.
Integration of the HRA 1998 into the United Kingdom’s domestic laws has been considered by most a stepping stone in the right direction for citizens, because it allows for greater application of the European Convention on Human Rights (ECHR). Prior to inclusion of these profound laws, courts in the United Kingdom was bound by the belief that when conflicts arose between the ECHR and domestic law, the UK Laws must prevail, R v Secretary of Home Dept ex parte Thakrar & R. v Secretary of Home Dept. ex parte Brind. The Human Rights Act 1998 came into full effect on October 2, 2000; the Act incorporated the European Convention on Human Rights into the domestic laws of the United Kingdom. The desire of the Government in incorporating this law was to allow cases that raise Conventional issues to be dealt with domestically by the UK courts. The law in whole was designed to help provide and build a “culture of rights and responsibilities across the United Kingdom.” Quoting Rt. Hon. Jack Straw MP, Home Secretary. The passing of this Act into UK domestic laws allows the UK courts to use the agreed Convention in any legal proceedings that warrants its use, thus allowing the courts to incorporate decisions into its rulings using the Convention as its guide. It further allows UK citizens to assert their rights under the Convention in UK courts and Tribunals. Yet the courts under this Act must interpret domestic laws and give effect in a way that allows for compatibility with Convention rights. The Act works in two main ways, (1) on the courts and (2) on public authorities. Firstly, courts and tribunals must, “so far as possible, interpret legislation compatibly with the Convention rights.” (The Human Rights Act 1998.) Where it is not possible to interpret primary legislation making it compatibly, then that legislation remains in force but the court may issue a declaration of incompatibility, in R v A (2001) Lord Steyn could have but did not declare the Youth Justice Criminal Evidence Act 1999 as incompatible (as per s. 4 HRA) but proceeded to declare s. 41 of the Act as “too widely drafted and had made excessive inroads into the rights for a fair trial (Article 6 ECHR)” if legislation was considered incompatible, then only Parliament can decide whether to amend the legislation to make it compatible. Secondly, it requires public authorities to act compatibly with Convention rights, unless primary legislation makes that impossible. (A public authority is defined in part as any courts and tribunals, or anyone who is considered to be performing functions of a public nature.) The effect that the Act has on Public bodies can be seen in Section 6 of the Act which provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Consequently, legislation is to be given effect and public authorities will be obliged to act in a way which is compatible with an individual’s right, and respect for their private life. If individuals believe that their rights have been so abridged by a public authority a challenge can be made through the Courts in an attempt to remedy these failings. R v Aston University Senate, ex p. Roffey 1969; McInnes v Onslow-Fane 1978. The HRA also provides that “a court or tribunal in determining a decision which has arisen in connection with a Convention right must take into account the [Strasbourg jurisprudence]”. To help us answer the question, we need to understand the original purpose of the HRA Act 1998. The law in whole was designed to help provide and build a “culture of rights and responsibilities across the United Kingdom.” Quoting Rt. Hon. Jack Straw MP, Home Secretary. The Convention itself is a treaty and it provides for a remedy between individuals and the state and has...
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