This document contains the following:
- Pre Human Rights Act 1998;
- both role of court and the role of parliament - case law included;
-tradicional system criticism;
-aims, provisions and effectiveness of the HRA1998 - case law included;
-rights granted under the 1998 Act and its use in domestic ...
Human Rights Act 1998
HRA came into effect in 2000 and while it does not strictly incorporate the European Convention
into domestic law, it allows the courts to give ‘further effect’ to the Convention and to take
Convention rights and case law into account when interpreting and developing domestic law. As a
consequence individuals can now rely directly on Convention rights in the domestic courts.
Before the Act the courts could only give indirect effect to the Convention, where an Act of
Parliament was ambiguous R v Home Secretary, ex parte Brind (1991), and they could not apply
Convention rights where the domestic law did not recognise that claim that telephone tapping was
in violation of Article 8 of the Convention, guaranteeing the right to private life.
The Act builds on and enhances the traditional method of protecting civil liberties. Thus, the courts
can still apply traditional constitutional principles such as the presumption of innocence, the control
of arbitrary power and the rules of natural justice. However, the doctrine of parliamentary
sovereignty is retained - the courts still cannot refuse to recognise an Act of Parliament and
Parliament retains the right to pass incompatible legislation.
Pre-Human Rights Act 1998
In the absence of a written constitution and a Bill of Rights, individual human rights were protected
by the courts, Parliament and the democratic process, including public support and opinion. Dicey
distinguished the British method from other countries by stating that our constitution was not the
source but the consequence of the rights of individual rights resulted from court decisions, applying
the traditional private law to which all, including the government, were subject. In Entick v
Carrington (1765), the court upheld the individual’s right to property and person by applying the
traditional law of trespass against the government officials.
The role of the courts in protecting civil liberties
Through the formal procedure of judicial review, the courts could safeguard against arbritary and
unreasonable interference with human rights. Thus courts could:
• Interpret legislation in the light of constitutional fundamentals, ensuring a human rights friendly
interpretation - Waddington v Miah (1974)
• Assume Parliament did not intend to interfere with fundamental rights - Raymond v Honey
(1984). Even in the post-HRA era the courts can have regard to these constitutional values in
declaring secondary legislation, ultra vires, and in Ahmed v HM Treasury (2010), the Supreme
Court held that Terrorism Order 2006, which allowed for freezing orders to be placed on the
funds of those who were reasonably suspended of committing an act of or facilitating terrorism
were ultra vires s1 of the United Nations Act 1946.
• Subject executive decisions were stricter review where human rights were violated - R v Ministry
of Defence, ex parte Smith (1996)
• Apply the principles of natural justice to ensure a fair and impartial hearing - R v Bow Street
Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (2000)
The role of Parliament in protecting civil liberties
Parliament could pass legislation securing the rights and freedoms of its citizens.
• Statutes such as the Equality Act 2010, protect individuals from unlawful discrimination and
safeguard the right to equality;
• The Police and Criminal Evidence Act 1984, provides safeguards against arbitrary police powers
with respect to arrest, detention and search and entry;
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