Human Rights Act 1998 (HRA) and Public Law Free essay! Download now
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Human Rights Act 1998 (HRA) and Public Law
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DescriptionHuman Rights Act 1998 (HRA) and Public Law
The HRA does not actually incorporate the convention rights to give to UK citizens, i.e. it is neither directly binding nor justiciable against private bodies. Instead of incorporation it gives the preamble “further effect”, which is mainly delivered by the interpretation of legislation, and the requirement on public authorities to act compatibly with ECHR.
Therefore the examination of the extent to which the Act gives further effect to existing Convention rights will directly and immediately apply to a public bodies. One must also examine certain areas to find if “further effect” can exist and be available in any form to all citizens of the United Kingdom.
The interpretation of Convention rights, and of legislation, are probably the most important areas of the Act to give further effect to ECHR, and possibly the most problematic when looking at further effect. Here compatibility comes within the realms of interpretation and is the key to giving further effect to Convention rights.
S.2 HRA covers interpretation of the convention, and also what is known as “Strasbourg Jurisprudence”. It basically means when considering issues under the Convention in a court or tribunal they must take into account previous European case law, and advisory opinions of ECHR. That is if it exists and is related to the case before them. It is not binding as such, however it is predicted in textbooks and reports that courts will wish to protect rights just as much as in European law; in not doing so would defeat the purposes of HRA, but also open floodgates to applications to Strasbourg.
In s.3 HRA, primary and subordinate legislation past, present and future must be compatibly read and given effect to, in so far as it is possible to do so. If it is not possible any incompatible legislation will remain valid law.
One could say this has now a huge impact on the Judiciary in that in every case they are bound to adjudicate compatibly with ECHR as far as is possible, which should give rise to further effect; but it would be foolish to forget that the Judiciary are experts in law and can deliver ambiguous ratio and judgements – they basically can interpret to a certain extent how they wish and give reasons why. Under s.4 HRA they are able to make a “declaration of incompatibility” if it is not possible to be compatible with ECHR, however, as yet there have been no statements of incompatibility. It is early days, but could be a possible indication that the HRA is having the desired impact on the Judiciary in its aim to achieve further effect on protection of Convention rights.
There are more problematic areas not outlined in the Act which actually cover the application and interpretation of it. At present, unlike South Africa and Canada, HRA 1998 does not allow for private persons to bring a direct action of a breach of the Convention rights - only public bodies whose protection has been discussed above.
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