University of London
“The HRA 1998 is being used for purposes not
originally intended by its proponents.”
The reason behind origination of the Human Rights:
European Human Rights law is not the product of single monolithic mechanism. Instead several institutions played a significant role in order to establish mechanism for protecting human rights. Among these the role of at least two organisation is worthy of consideration: THE COUNCIL OF EUROPE and THE EUROPEAN UNION (EU). The Council of Europe is the oldest one and played the most significant role in promoting Human Rights at the European level. The European Union which remains politically the most viable and influential body, has had only an indirect part to play in protecting human rights. However, with rapid changes of time, increasingly human rights issues are being absorbed in to the program of the rapidly expanding EU. During the Second World War (1939-1949) Europe had been the scene of most serious human rights violations. At the end of the war it had become a major objective of the amalgamated powers to punish those who had been involved in crimes against humanity during the war and to uphold human rights in the region. Human rights treaty was meant to act as a bulwark against the recurrence of the worst form of human rights violations.. Thus this law was formulated to protect the rights and interest of the weak and vulnerable from the hands of the cruel aristocratic dictators. Although Britain was centrally involved in drafting the European Convention of Human Rights in 1950, individual citizens were only granted the right of individual petition 1965.
The British approach prior to the incorporation of the Human Rights Act,1998:
Before this authority was granted, it was only possible for the citizens to enforce the rights by applying to Strasbourg. Prior to the incorporation of Convention rights through the HRA 98 Act, the British courts always used to consider these rules as an aid to interpretation and no more than that. An example of this instance can be found in the case law of Derbyshire Newspaper. Historically, Britain had a tradition of civil liberties popularized by late nineteenth century writer A.V. Dicey. It was asserted by him that although Britain did not have the rights that were guaranteed by a “written constitution” they had liberties. They could do anything which was not prohibited by law. Cases like Entick v Carrington suggest that the notion affirmed by Dicey was true because the courts would intervene whenever government officials would try to suppress the civil liberties of the citizens of the State by implementing rules that were not backed by any statute or common law tradition. However, this academic forgot to take into consideration that this particular rule is also applicable in case of government. Therefore, as a result government may violate individual rights and freedom even though it is not formally empowered to do so, on the ground that it is doing nothing that is prohibited by law: Malone V Metropolitan Police Commissioner, . Moreover, another difficulty to the British approach is that liberty is particularly vulnerable to erosion.
The role of judges prior and after the incorporation of Human Rights Act,1998:
The common law recognizes that people are free to do anything which is not unlawful, but is powerless to prevent new restrictions from being enacted by the legislature. Paradoxically, many restrictions on liberty were imposed by the common law as judges in order to ensure that they do not trespass on the province of Parliament used to adopt literal approach whilst interpreting statutes enacted by Parliament. To many it was a way of showing deference to the will of the ultimate law making body. The judges preferred to...