Human Rights Act 1998 and European Convention of Human Rights

Comprehensive description of the Human Rights Act 1998 and the European Convention of Human Rights 1954.

 

The Human Rights Act 1998 came into force in the United Kingdom in October 2000. It is made up of the sections that are aimed at codifying the rights entrenched in the European convention on human rights into the municipal law of the United Kingdom. The enactment of this Act was aimed at allowing the individuals to be able to seek a local remedy in case there is a violation of a right provided in the convention instead of taking a matter to the Strasbourg court to seek a redress. Despite the creation of a local remedy the Strasbourg remained to be the court of final resort in case the local courts did not accord a sufficient remedy.

The Convention was drafted by the Council of Europe after WW II. It was led by Sir David Maxwell-Fyfe who also oversaw the drafting of the European Convention on Human Rights. It was aimed at incorporating the civil liberties by putting in place an effective democracy in the UK. Though the UK was a member to the European convention on human rights the citizens in UK were not able to take matters to the Strasbourg court until 1960. It was argued that the executive used its power to limit people to access the court and in implementing the rights enshrined in the convention. As a result there were movements which invoked the British bill of rights 1689 and it led to a need to come up with a human right Act. The Labor government incorporated the European Convention on Human Rights into law through the Human Rights Act 1998. It used to take minimum of five years to get a matter in the  European Court  of human rights after exhaustion of local remedies and very costly. Therefore, the enactment of the human rights Act came to resolve this problem.

Comprehensive description of the Human Rights Act 1998 and the European Convention of Human Rights 1954.
Comprehensive description of the Human Rights Act 1998 and the European Convention of Human Rights 1954.

The Human Rights Act 1998 points out the fundamental rights and freedoms that persons in the United Kingdom are entitled to and can enforce. These rights and freedoms are also entitled in the European convention of Human rights. They include the following:

  1. Right to life
  2. Freedom from torture and inhuman or degrading treatment
  3. Right to liberty and security
  4. Freedom from slavery and forced labor
  5. Right to a fair trial
  6. No punishment without law
  7. Respect for your private and family life, home and correspondence
  8. Freedom of thought, belief and religion
  9. Freedom of expression
  10. Freedom of assembly and association
  11. Right to marry and start a family
  12. Protection from discrimination in respect of these rights and freedoms
  13. Right to peaceful enjoyment of your property
  14. Right to education
  15. Right to participate in free elections

The local courts in the UK are required to interpret both the primary and the subordinate statutes so that they are compatible with the provisions of the European Convention of Human rights,[1] This interpretation is aimed at ensuring that at no time should the Human Rights Act be deemed repealed under the domestic legislation. This has been achieved by application of the three forms i.e. reading in by putting in words that are not provided in the statute, reading down to ensure words are in compliance. In case there is a conflict between the statute and the convention then that legislation is deemed incompatible. This declaration of incompatibility is also pointed out in section 4 and 10 of the HRA.This declaration of incompatibility is not binding to the parties who have filed a matter in the court seeking redress.

The European Convention of Human Rights is formally the Convention for the Protection of Human Rights and Fundamental Freedoms. It is an international treaty to protect fundamental freedoms and human rights and in Europe. It is a binding international agreement in which United Kingdom helped to draft and has complied with for over half a century now.  It was drafted in the year 1950 and entered into force on 3 September 1953.

The Convention established the European Court of Human Rights the EctHR for persons who feel their rights have been violated, infringed or threatened under the Convention by a state party. Judgments confirming that there is a violation are binding on the party states concerned and they are obliged to execute them. This gives the individual an active role in the international arena. The European Convention is still the only international human rights agreement providing a very quality and high degree of protection of individual rights.

As amended by Protocol 11, there are three parts to the convention. Section 1 protects fundamental rights and freedoms that is Articles 2 to 18. Section II which is from articles 19 to 51 sets up the Court and states its rules of operation. Concluding provisions are captured in section III. The following are the fundamental rights as enshrined by the Convention and the Human Rights Act,

a) Article 1 binds the signatory parties to secure the rights under I the article which are within its jurisdiction. . Although, jurisdiction is not only confined to the national territory of the Contracting State. The obligation also extends to foreign territory, such as foreign land that the state has full control of, as acknowledged by the ruling in the case of Loizidou v Turkey.

b) Article 2 provides for protection of the life of every person with lawful executions as an exception although this has been superseded by Protocols 6 and 13. Protocol 6 prohibits imposition of the death penalty in peacetime, and Protocol 13 extends the prohibition to all circumstances. According to the second paragraph, death resulting from self defense or arresting a suspect or fugitive, or calming riots or insurrections, will not contravene the Article if the force is reasonable and appropriate. The court has ruled that under Article 2, states have three main duties that is the duty to refrain from unlawful killing, the duty to investigate suspicious deaths and a duty to a duty to investigate suspicious deaths and, in certain circumstances, a duty to prevent foreseeable threats to life.

c) Article 3 is against torture and degrading human treatment. This goes with no exception or limitations. This mostly applies to extra judicial killings and excessive police force and inhumane conditions and treatment in detention.

d) Article 4 is against slavery, servitude and forced labor, except labor done for normal punishment, compulsory military practice or labor in civil duties.

e) Article 5 provides that everyone has the right to liberty and security of person. This entitles persons to be free and entitles them to security at all terms. Further, Article 5 provides the right to liberty with the only limitation as lawful arrest or detention, for example, arrest on reasonable suspicion of a crime. This also contains the right to be informed the charge in a language one understands the right to fast access to judicial proceedings and to trial within reasonable time.

f) According to article 6, persons have a right to a fair trial, a public hearing before independent fair tribunals and within reasonable time. This also grants the right to the presumption of innocence, to be give adequate time to prepare a defense and the accessibility to the necessary documents.

g) Article 7 prohibits the retrospective criminalization of acts and omissions. This prevents persons from being charged with criminal offences that were not crimes at the time of the commission. It states that a criminal offence is one under national and international law. This therefore entitles one to prosecute even for crimes not recognized in the domestic law but in the international law.

h) Article 8 provides a right to privacy. This is in line with private life, family life and his home. This is however subject to certain limitations that are lawful. Furthermore, Article 8 at times comprises positive obligations.

i) Article 9 protects the right to freedom to thought, conscience and religion including the freedom to change a religion or belief and to manifest any religion of choice.

j) Article 10 protects the rights to freedom of expression. This is subject to some lawful restrictions. It also includes freedom to hold opinions, receive and impart information and ideas

k) Article 11 provides for the right to assembly and association. According to this, every person has the right to associate and hold lawful assembly in accordance to the law.

l) Article 12 protects the right for women and men to marry and establish a family. The parties have to be of marriageable age though.

m) Article 14 protects all persons from all form of discrimination. This is with regards to race, color, status, sex, and in issues pertaining property.

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