Human Rights Act 1998 and Impact on the Judicial Understanding of Precedent in the Uk

Topics: Human rights, European Convention on Human Rights, Law Pages: 6 (2059 words) Published: May 1, 2013
Human Rights Act 1998 has impacted on the judicial understanding of precedent Human rights are inalienable rights in which people are conferred with by birth. The state being the guardian of such rights have an absolute obligation to protect the human rights. Prior to the Human Rights Act 1998, a Uk citizen who had a grievance of a violation of a human right, had to complain to the Euoropean Court of Human rights in order to obtain redress. Comparatively, it can be said that by the enactment of the Human Rights Act, the rights which were protected under the European Convention of Human rights(ECHR) were brought home, thus better protecting the human rights within the sphere of the United Kingdom. The Human Rights Act 1998 (the Act) came into full force on 2 October 2000. The aim of the Act is to ensure that a set of basic human rights, which are listed in the Act, are fully respected and enforced in the UK. Once the HRA became law UK citizens had, for the first time, rights instead of liberties. The Act fundamentally changes the way the UK system of justice works, and makes public authorities more accountable for their decisions. The effect of the Act is to put human rights at the centre of the UK legal system, for the first time. Under the Human Rights Act, everyone is entitled to expect that the government, and all public agencies and organisations should have respect for their basic human rights. If they consider that their rights have been ignored, they can bring a case in the UK courts to challenge an action or a decision by any public authority on the grounds that it interferes with their rights – for example their right to express their views freely, or their right to privacy, or their right to a fair trial in court. The rights that are brought into effect by the Human Rights Act are the rights laid down in an international treaty, the European Convention on Human Rights (the Convention), which was signed by the UK in 1951. That treaty permits individuals who believe that their human rights have been violated to bring a case before an international court in Strasbourg, the European Court of Human Rights. Taking a case to Strasbourg is a time-consuming and expensive process for the UK citizens. For example, it means that someone who believed that they had not been given a fair trial would have to appeal their case all the way through the UK courts, without being able to have their human rights arguments properly addressed, and then go to the Court in Strasbourg, which might take a considerable time to reach a final decision in the case. Coming back to the topic, Human Rights Act 1998 has impacted on the judicial understanding of precedent, and the underlying features of the doctrine has changed specially from abolishing the death penalty in UK. The Act (section 21(5)) completely abolished the death penalty in the United Kingdom, effective on royal assent. Previously to this, the death penalty had already been abolished for murder, but it remained in force for certain military offences. The purpose of the HRA is to allow the courts to apply human rights principles where they were once barred from doing so. It was not enacted so that the courts could have the final say in areas where there is no settled human rights answer any more than it allows them to abdicate from their responsibility to scrutinise on the grounds that it is outside their sphere of competence.

Unlike most Bills of Rights and constitutional documents around the world, the HRA does not give the courts any power to strike down legislation and this is one the main criticism to the HRA. Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament.  

The role of the Judiciary, as an arm of the state was enhanced widely, by the incorporation of the HRA in regard of the role of interpretation of the judges. In the case of Ghaidan v Ghaidan-Mendoza Concerned the Rent Act...
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