USA: +1 415 256 4347 
Sign in
Write my research paper
Title: To what extent has the Human Rights Act 1998 contributed to the changing of the human rights culture in the UK
Introduction
Since the enactment of the Human Rights Act in 1998, the human rights culture has changed a great deal. The guarantees protection under the law, of some rights and freedoms deemed important to the extent of being written down in a special format. UK is one of the countries that have written such laws down as part of the country’s law, in this case through the Human Rights Act. Since its enactment, the act has made the task of safeguarding and promoting human rights the foundational aim of the government.
It is imperative to understand the background against which the Act came enacted. Traditionally, UK has an unwritten constitution. This constitution has been an integral part of the national law and citizens have continued to enjoy a heritage of individual liberties. However, it has not always been very easy to spell out what it entails for one’s liberties to be safeguarded and protected, especially when there is a conflict between unwritten liberties and other laws. This paper explores the extent to which the Human Rights Act 1998 (HTA) has contributed to the change of human rights culture in the UK since its enactment.
HTA: Alternative to the European Convention on Human Rights
The UK greatly contributed to the drafting of the European Convention on Human Rights (ECHR) in 1950. The ECHR is a binding agreement of international significance that the country had to comply with since 1950. In this convention, a stipulation was made on the fundamental political and civil rights of citizens, although for many years this convention had not been made an integral part of the English law. In order to use the convention, UK had to take its cases to the European Court of Human Rights, which is based in Strasbourg. This undertaking has been an expensive and time-consuming one.
However, since 2000, the Human Rights Act made it possible for rights spelt out in the ECHR to be enforceable in UK courts. This arrangement was less time-consuming, simpler, and quicker compared to the arrangement of 1950. Just like the ECHR, the Human Rights Act offers the people of the UK a clear legal statement regarding their fundamental freedoms and basic rights. In order to maintain the spirit that led to the formation of ECHR, a key principle of the Human Rights Act is that there should always be compatibility with the rights spelt out in the ECHR whenever possible.
In this regard, the Act simply gives further effect to the rights spelt out under the ECHR. It is about respect for every individual’s human rights. Just like the ECHR, the Act’s core aim is ensuring that everyone’s rights are always properly respected. This calls for a balance between one individual’s rights against those of another. An excellent example is the situation where one person’s right to express his views publicly has to be balanced against another individual’s fundamental right to a private life.
Since its enactment, the Act has also taken into account the wider interests of people as a community. This idea was reflected in the same way the ECHR was written. At the beginning of the Act, there are Articles that highlight various basic rights and fundamental freedoms. The second part contains a description of how these rights may require being limited. One of the examples given entails combating crime and maintaining public health. These two requirements necessitate the need for public authorities to sometimes limit a person’s basic right. In other words, the logic of the act in this regard is that rights have to go together with responsibilities. Under perfect circumstances of the implementation of the Act, people should recognize the need to respect rights and act in a responsible manner towards others as well as towards the wider community.
In terms of democracy, the Human Rights Act has ensured that various supporting judgments issued at the European Court of Human rights are readily available in UK courts. Moreover, the parliament has been compelled to reflect very carefully in consideration of all proposed legislations, on where the balance should lie in the sometimes-difficult question of addressing both the community’s needs and the rights of the individual person. Moreover, courts have been compelled to respect all the laws that parliament passes. However, the act also allows a higher court to make a determination that it is not possible to give meaning to a law so as to maintain compatibility with the rights provided for in the ECHR. In such a case, it is normally upon to parliament to make a decision on whether to amend the law and how this should be done. This is how the Act has been contributing to a balance between rights and responsibilities in both the judicial and lawmaking sections of the constitution. Obviously, the final work is left up to the UK’s democratic process.
Prevention of human rights violations
The Act has contributed greatly to the prevention of human rights violations. To understand this, it is important to first appreciate the shift that has transpired with regard to the way the legal and political systems function in the UK. Prior to the enactment of this act, the UK law did not stipulate in an emphatic manner the need for local courts to respect the rights provided for under the ECHR. Indeed, the courts used to look up to ECHR in just exceptional cases, a case in point being situations when the UK legislation appeared to be unclear.
Under the act, all public authorities have been compelled to always make sure that all their undertakings are in compatibility with the Convention except in cases where this is made impossible by parliament. In this regard, all government departments were compelled to review all their existing legislations and policy frameworks to ensure that they were compliant with all human rights standards. In cases where incompatibilities were noted, they had to work out ways of fostering human rights in a positive manner. Such was the effect that the Human Rights Act had on the country. People realized that they were expected to demand that their human rights be respected by the authorities.
Increase in public confidence in human rights protection
Since the act came into force, public confidence in the need for human rights protection has increased considerably. People seem to share an understanding of what is right and wrong with regard to human rights. People in the UK are more confident that their rights and freedoms will be protected by the state organs. This has encourages openness and increased participation in the country’s democratic process. Before coming to force, the act was very widely publicized, and many people got to know about during various public presentations. As one would expect, some of the presentations did not portray the act in the most favorable light, but all in all, the attention of the public was drawn to this legislation.
Public confidence has increased because of the way in which the act confers rights and responsibilities that form a core set of values for use by all authorities across the country. For this reason, the citizens are sure that public authorities have to bear in mind the need to adhere to human rights principles whenever they are making decisions on issues that touch on people’s human rights. In essence, human rights become a core aspect of decision making.
Alastair points out that there are three main ways in which the act functions[1]. First, it imposes a requirement that all legislation be interpreted as well as given effect in a manner that is compatible with the rights provided for in the Convention. Whenever this is not possible, the court is required to disapply any subordinate legislation that is incompatible with the Convention’s rights. Alternatively, in the case of a higher court, there may be need to have a declaration of incompatibility in place with regard to the primary legislation. The effect of such a move is that it triggers a move that gives the minister the authority to make a remedial order for amending the legislation so that it can be compatible with the Convention rights.
The second way in which the Act applies is by making it illegal for public authorities to act in a manner that is incompatibility with the Convention rights. It allows for a case to be presented in a local court of tribunal against any authority that violates the Convention’s rights. However, the authority cannot be deemed to have acted unlawfully if at all a provision of primary legislation would not have required the authority to act in a different manner.
Steiner notes that since the effective date of the Human Rights Act passed, many people in the UK have had an opportunity to argue that certain decisions led to violation of their rights[2]. An excellent example relates to interference that infringes upon individuals’ right to private life, particularly in the family setting. In essence, the language of basic human rights and fundamental freedoms continues to become the most common way of making a determination on whether certain public authorities are acting unlawfully or not. The act requires courts to look carefully whether such interference with the human rights in question was really necessary in efforts to achieve one or more of the aims expressly state in the Convention. If the interference was not necessary, the courts have to declare that the public authority in question acted in an unlawful manner.
The third way in which the Act is applied is the situation where tribunals and courts have to take account of the Convention rights in every case brought before them. This has very far-reaching implications on the country’s human rights environment. This is because it has made the concept of human rights to take center stage in all judicial deliberations. The implication of this has been that it has become necessary for a common law to be developed that is compatible with all the Convention rights. The Strasbourg caselaw has to be taken into account. An excellent example is the way in which the Human Rights Act is being relied on in the determination of cases that involve the competing interests of freedom of expression and privacy. Curtice observes that many well-known people have been using Article 8 in the Convention, which deals with right to respect for one’s private life, to get injunctions against newspapers such that they are prevented from publishing personal stories that touch on their lives[3].
According to Greer, j[4]udges have differed on how far the existing law can be reinterpreted with the use of powers provided for under section 3 of the Act. However, today there is a line of cases appearing to clearly demonstrate the form of consensus reached by judges on the limits that should be put on Section 3. Normally, in cases where people think that someone has breached their Convention rights, the first viable options is normally to assess if the problem can be dealt with outside the courts. This entails pointing out the problem to the person or authority concerned. In most cases, they ask for an explanation and request, if possible, for everything to be put right. Sometimes, the affected party may take the matter up with the specific complaints authority that has been established for that purpose. However, if the matter requires consideration by a tribunal or court, the victim is required first and foremost to raise the point with reference to a case in which these rights have already been involved. Alternatively, the complainant may bring forth a separate case under the Act. Under the Human Rights Act, the tribunal or court must consider the complaint under consideration on the Strasbourg caselaw. Moreover, whenever possible, courts are obligated to ensure consistency with the rights protected under the convention when giving meaning to laws.
Balance between interests of the wider community and fundamental human rights
There are many issues for which safeguards on fundamental human rights have to be considered in relation to the interests of the rights of the wider community. In the UK, there are many situations where a balance has had to be struck by the courts in the interpretation of the Human Rights Act. An excellent example is the issue of asylum. Mole points out that o[5]n this issue, the UNHCR (United Nations High Commission for Refugees) reaffirmed that the 1951 convention on the status of refugees and the resultant 1967 Protocol continue to form the basis of the international regime for the protection of refugees. However, the UNHCR added that in different contexts, a need for international protection may arise in cases that have not been addressed in the both the 1967 Protocol and the 1951 convention. On this basis, the body encouraged judiciaries to resort to alternative forms of international protection. In the case of the UK, the Human Rights Act provides such an alternative form of protection.
The importance of sources of complementary protection has been acknowledged both regionally and internationally. From a regional perspective the ECHR has recognized this form of protection. The ECHR explicitly provides an answer to the question of who ought to be protected from expulsion and who should not be accorded such protection. The main issues arising are welfare rights, detention and procedural issues. These issues are normally at the core of legal understanding among professionals who work within the ECHR system.
In the Convention, the aspect of balancing between individual’s rights and the interests of the wider community is highlighted in absolute nature of Article 3. Article 3 of the Human Rights Act 1998 expressly prohibits inhuman or degrading treatment, torture, or punishment of human beings[6]. By virtue of its absolute nature, this article offers protection to issues that are not even catered for in the Refugee Convention.
In a case where the court displayed some willingness to strike a balance is N v. UK. This case involved the UK’s decision to expel a woman who was suffering from HIV/Aids to Uganda. In this case, the court the court did not overrule its previous line of reasoning. Instead, it reiterated that the decision to expel an alien who suffers from a serious physical or mental illness to another country with inferior facilities for treating that illness are by far inferior to those that can be readily accessed in the contracting state raises a fundamental issue under Article 3. This line of reasoning, however, emphasized that prohibition of expulsion can only be effected in exceptional cases whereby there are compelling grounds against the expulsion.
Impact of the Act on the UK Law
Under the Human Rights Act, the decisions of UK courts have not had significant effect on the ability by the government to fight crime or on criminal law. However, the act has had an impact upon the legislation put in place by the government to fight terrorism. In this area, the main difficulties are seen to be coming from the European Court of Human Rights and not from the Human Rights Act. In other areas, the act has been of benefit to the UK law, whereby it has promoted dialogue between judges in the UK and those who work inside the European Court of Human Rights. Moreover, this act has not created any significant alteration of the constitutional balance between the Executive, Parliament, and the Judiciary.
Arguments raised with regard to the act dwell on a wide range of criminal and civil litigation. For the most part, these arguments have been considered explicitly in more than a third of the cased focused on by the House of Lords since the day this act came into force. In many instances, though, the court would either have come to a conclusion similar to the one under common law, or found out that the decision that was being challenged had already been taken in the proper manner. Moreover, in numerous cases, courts have rejected human right arguments as being either irrelevant to the case or having been misconceived.
There are two significant cases that highlight the far-reaching impact that the Act has had on the human rights culture in the UK. The first case is A and Others v The Home Secretary. In this case, the House of Lords came to the decision that the move to detain foreign nationals without trial under the provisions of the Anti-Terrorism, Crime and Security Act 2001 presented aspects of incompatibility with the provisions of the ECHR, specifically Article 14. This is because it was a case of discrimination on the grounds of immigration status and nationality. However, nine out of the ten court members decided that there was entitlement on the part of the government for the conclusion that, to borrow from the words used in the ECHR, there was a ‘public emergency that threatened the nation’s life’. Since courts in the UK lack the power to strike down any primary legislation under the Act, the applicants had to remain in detention. This means that the government had sufficient time to look for alternative ways of ensuring continued protection to the public. In this regard, it introduced the Control Orders regime, which the parliament passed under the Prevention of Terrorism Act 2005.
Young points out that a[7]nother case of great significance relates to the ability by the UK to lawfully deport or expel those who are a threat or those who have immigrated illegally or those who have unsuccessfully claimed for asylum. Some of those qualifying for deportation or expulsion tend not to be deported because the destination country is considered unsafe. This is one of the reasons why deportation has not been effected. The other reason is the inability to balance the threat that the individual poses to national security against the mistreatment risk if the person was to be removed and transported to his destination country. The judgment that prevents the UK government from making this balance is the one that the one that was made the case known as Chahal v United Kingdom, which was delivered by the ECHR in 1996.
The UK has been making efforts to change this situation in its own cases that are pending in the ECHR. The intention is to accord UK the capability to account for the threat posed to national security on the one hand and to have the ability for giving the assurance that the returnee country offers on the other. However, it is clear that with regard to the Human Rights Act, no difference is made in this instance. This is partly because of the predation by the Chahal decision and partly because it is an archetypical example of the interpretation of Article 3 of the ECHR.
Therefore, in general, the Act appears not to have impeded the achievement of the UK government with regard to its objectives on immigration, terrorism, and crime. More importantly, it has led to promotion of the country’s human rights culture without exposing the citizens to any additional and unnecessary risks. Moreover, UK courts appear to have appreciated the existence of an area of judgment within which the judiciary has to defer, mainly on democratic grounds, to the opinion of the executive or the legislature. Whether or not the courts are going to continue with the culture of recognizing ‘discretionary areas in their judgments’ is entirely dependent upon the subject of the decision that is being challenged. The same thing may be said regarding the extent to which the courts recognize such discretionary areas.
The Human Rights Act has also led to the creation of dialogue between the ECHR and English judges. This happens because the English courts are compelled to analytically focus on the case law of the ECHR. This has made the case law to be highly influential on the English approach to human rights-related cases. This dialogue has contributed to a scenario whereby very few adverse decisions are being made by the ECHR against the UK government, particularly since the act came into force. Moreover, the number of times that the Acts of parliament have been declared to be incompatible with the Convention rights have reduced drastically. On each occasion, the UK parliament has undertaken to pass further legislation that puts the law back on the line of conformity to the Convention rights. The net effect has been a situation where the human rights culture has improved considerably in the UK.
The act has also led to a clear delineation between who is a victim of human rights violations and who is not. Again, reference goes back to the Convention rights. Those who bring proceedings under the new act have to be victims of violations of a breach of convention rights. The net effect of this in the human rights culture in the UK is a situation where the internationalized nature of human rights is becoming more appreciated. Prior to the enactment of the Human Rights Act, not many lay people were aware of the ECHR and its role in championing for human rights not only in the UK but in other European countries. There is more interaction at the international level on matters of human rights, particularly those that are not of personal nature or those for which the impact upon the victim(s) is indirect. Indeed, the Human Rights Act has a great potential of having implications outside the UK. A good example is where a decision has to be made as to whether someone should enter the UK or not, or has to be forced to leave, in which case the Convention Rights are engaged.
Impact of the Act on formulation of policy on human rights
The Human Rights Act has influenced the way policy is formulated in the UK in diverse issues, ranging to policing and taxation to mental health and medical practice. From a legal perspective, though, there are three main sources of influences for this act. First, the process of ensuring that there is compatibility with Convention rights has been thoroughly formalized. This includes the requirement that in every bill, there should be a state of full compatibility. It also entails the requirement of a memorandum for every bill to be approved, in which a thorough scrutiny by the Joint Parliamentary Committee on Human Rights is mandatory. The second source of influence relates to responses to litigation, which has the potential to bring about change in policy or a change in the way the delivery of a specific policy is done. Thirdly, the act influences policy through a transformation in behavior arising from the sheer immediacy of the new law, which makes lawful for all public authorities to act in a manner that shows incompatibility with the Convention rights.
Clare notes that on specific issues, police service is one of the areas where the Act has had far-reaching implications[8]. The influence is seen both at the organizational level as well as on the police officers’ day-to-day work practices. However, critics say that instead of creating greater awareness of human rights among the officers, the act has instead become an institutionalized piece of legislation that adds to the bureaucratic process within the police force. This has created a scenario where there is a fair degree of conformity by police officers yet active consideration of issues of human rights is not encouraged. In such a situation, it has become difficult for police officers to become responsive to human rights, and instead they choose to use bureaucratic procedures to justify the existing practices.
In such a scenario, police officers normally appear to be concerned more about the ‘risks’ that human rights issues pose to their work. Such a narrow, somewhat misdirected focus leads to diversion of attention away from human rights issues. The outcome has been a situation whereby the act is not proactively used to strike a balance between the individual’s rights and the community’s interests. Instead, the act appears to play the role of a mere framework within which the officers mandate decision making while at the same time protecting themselves from criticism from human rights crusaders and the law.
With regard to taxation, the effects of the act appear not to have been clearly understood. The future impact of the act still appears to be unclear, particularly in relation to the rights that UK taxpayers used to enjoy in the past. For a period of over 30 years, the application of the European Community has had far reaching implications on UK taxpayers, and it has reached a point where it is difficult to tell where the line is between the requirements of the Convention rights and those provided for under the European Community law. What is clear, though, is that taxpayers have been expressing the willingness to mount an attack on the tax law as it is currently applied on grounds that it breaches their rights as provided for by the Convention. This is bound to have far-reaching implications for future procedures of tax administration.
However, human rights infringements touching on tax issues are considered less serious compared to other forms of human rights violations. For this reason, the likelihood of success on this front is normally considered minimal. To date, taxpayers who have mounted a challenge on the prevailing tax regime have had less success. There is a high likelihood that this trend will continue into the future. Indeed, such an outcome is normally seen by some as justifiable in light of the clamor for focus on prioritization of more serious human rights violations. Moreover, the issue of taxation is ordinarily viewed as one that touches on the interests of the wider community as opposed to those of the individual. Therefore, by taking priority away from taxation issues, the impression created is that a balance is being created between the rights of the individual and the interests of the entire community.
A very important area where the Act has had a far-reaching impact is in medical decision making. When the act came into force in 2000, it was hailed as a significant and welcome development in efforts to protect the human rights of the individual in the UK. Its implementation triggered speculation in professional journals and in the media regarding the impact that it would have on new legislation, including its effect on decisions made by professionals in the medical fraternity. Many opinion leaders held the view that the true impact of this law would remain unknown until a large body of case law was developed and then used as an illustration of the interpretation of the Convention rights by UK courts.
However, it was clear that the Human Rights Act was a representation of a drastic change in practice by health professionals. To a large extent, the Human Rights Act and its requirements was viewed as representing the existing good practice in the medical profession. It is not surprising therefore that whenever doctors make decisions that are based on the existing ethical standards they are seen to be acting in compliance with the act. Issues such as communication and consultation, human dignity, and best interests, which are key elements of good clinical practice, are also a core part of the Convention rights.
However, speculation also spread to the aspect of challenging medical decisions on the basis of the new legislation. This speculation was triggered by the increased level of human rights awareness that was created by the act. Medical practitioners started considering it essential for decisions taken regarding both individual patients and the national medical policy to be made in such a way that they could withstand any future scrutiny. It was speculated that added importance would be accorded to both individual decisions and the process of making decisions.
Curtice notes that since it was introduced in 2000 in the UK, the Human Rights Act 1998, it has been the norm for the act to be put into consideration in all clinical cases, including those relating to mental health review tribunals[9]. However, Curtice points out that even before the consideration of these rights by UK courts started, the number of mental health cases that were being brought before the UCHR for breach of Article 3 had been very few[10]. Nevertheless, according to Curtice, there is need for Article 3 to be considered at all times in clinical settings where complaints arise from seclusion, detention, restraint, and control[11]. Upon analysis of case law, Curtice concludes that the concepts underpinning the Human Rights Act can be of great use in clinical practice[12].
The various reports in the UK that have pointed out issues of social care and poor health for people with intellectual disability have emphasized the need to improve human rights issues as a way of addressing shortcomings in care. In Article 8 of the ECHR, protection is offered for family and private life, and it applies regardless of whether an individual is capable of making such decisions that affect his or her life[13]. This provision is of specific importance for people with intellectual disability. When compared to the rest of the UCHR, there is a relatively larger body of case law that pertains to Article 8. This body of case law relates to such people in areas of accommodation, daycare centers, sexual relations, education, marriage, lifting and hoisting, and community care. This is a demonstration of the utmost of relevance of the Human Rights Act 1998 in safeguarding the rights of individuals with regard to medical care.
Conclusion
In summary, the Human Rights Act 1998 is seen to have had a positive impact on the human rights culture in the UK since it came in to force in 2000. It has had a beneficial impact on the relationship between the individual citizen and the state. It has done so by providing a framework through which policy formulation can lead to better outcomes with regard to safeguarding and protection of human rights. It ensures that the needs of every member of the UK’s diverse population are considered in the appropriate manner by both policymakers and those who implement this policy. Specifically, the examples provided in the present paper have demonstrated the ways in which the Act has led to a radical shift away from blanket policies towards those that are adjustable to the unique characteristics and circumstances of individual UK citizens.
Bibliography
Alastair, Mowbray. The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Blackwell Publishing, London, 2004.
Clare, Ovey. The European Convention on Human Rights, Oxford, New York, 2006.
Curtice, M., ‘Article 8 of the Human Rights Act 1998 and intellectual disability’, Advances In Psychiatric Treatment, vol. 17, November 2011, pp. 292–300.
Curtice Martin, ‘Article 8 of the Human Rights Act 1998: A review of case law related to forensic psychiatry and prisoners in the United Kingdom’, Journal of the American Academy of Psychiatry and the Law, vol. 37, February 2009, pp. 232–238.
Greer, Steven. The European Convention on Human Rights: Achievements, Problems and Prospects, CUP, Cambridge, 2006.
Mole Nuala. Asylum and the European Convention on Human Rights, (4th Ed.), Council of Europe Publishing, Strasbourg, 2007.
Steiner, H., Alston, Philip., & Goodman, Ryan. International Human Rights in Context: Law, Politics, Morals, Clarendon, Oxford, 2008, p. 925-1020.
UK Government, Human Rights Act 1998 (Article 8), retrieved from http://www.legislation.gov.uk/ukpga/1998/42/section/8 on December 9, 2011.
UK Government. Human Rights Act 1998 (Article 3), retrieved from http://www.legislation.gov.uk/ukpga/1998/42/section/3 on December 9, 2011.
Young, Alison. ‘Judicial sovereignty and the Human Rights Act 1998’, Cambridge Law Journal, vol. 61, January 2002, pp. 53-65.
[1] Mowbray Alastair.The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Blackwell Publishing, London, 2004.
[2] Steiner, Alston & Goodman, International Human Rights in Context: Law, Politics, Morals, Clarendon, Oxford, 2008, p. 925-1020.
[3] Curtice Martin, ‘Article 8 of the Human Rights Act 1998: A review of case law related to forensic psychiatry and prisoners in the United Kingdom’, Journal of the American Academy of Psychiatry and the Law, vol. 37, February 2009, pp. 232–238.
[4] Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects, CUP, Cambridge, 2006.
[5] Nuala Mole Asylum and the European Convention on Human Rights, (4th Ed.), Council of Europe Publishing, Strasbourg, 2007.
[6] UK Government. Human Rights Act 1998 Article 3 retrieved from http://www.legislation.gov.uk/ukpga/1998/42/section/3 on December 9, 2011.
[7] Alison Young. ‘Judicial sovereignty and the Human Rights Act 1998’, Cambridge Law Journal, vol. 61, January 2002, pp. 53-65.
[8] Ovey Clare. The European Convention on Human Rights, Oxford, New York, 2006.
[9] Martin Curtice. ‘Article 8 of the Human Rights Act 1998 and intellectual disability’, Advances In Psychiatric Treatment, vol. 17, November 2011, pp. 292–300.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] UK Government, Human Rights Act 1998 (Article 8), retrieved from http://www.legislation.gov.uk/ukpga/1998/42/section/8 on December 9, 2011.
©Copyright 2000-2018. All Rights Reserved. TermPaperChampions.com: The most reliable provider of custom academic papers. Our writers are here to help you complete papers from all disciplines and academic levels . You can always trust us to deliver.
