I am a qualified lawyer based in Lahore, Pakistan having more than seven years of experience dealing in litigation, civil and commercial.
Human Rights are those fundamental freedoms and entitlements that individuals possess by virtue of nothing more than their status as a human being. The Parliament of the England and Wales enacted the Human Rights Act 1998 (Act 1998) by bringing into the basic rights enlisted in the European Convention on Human Rights (Convention). Such incorporation allowed the United Kingdom to take proud for taking tough stance around the world on the human rights. Act 1998 is one of the most important constitutional legislation of the United Kingdom that provides the legal framework to enforce these particular human rights. Prior to the Act 1998, the United Kingdom had no single document which contained statement regarding protection of fundamental human rights except the English common law which guarantees the rights of an individual. The courts extended their powers to both develop the common law as well as exercise their powers in order to be consistent with the Convention, including in cases involving wholly private parties. The incorporation of the Convention rights was not in result of any political pressure or force, but the United Kingdom just intended “to bring those rights at home” therefore, the individuals can directly access such rights.
In general, the Act 1998 changed the philosophy of whole English legal system. The enactment of the Act 1998 makes the United Kingdom a better place to enjoy the fundamental freedom. Though the domestic courts' procedure is very slow, the individuals can take their cases to the domestic courts for protection of their rights rather than to file a complaint before the European Court of the Human Rights (the ECHR). The Act 1998 protects an individual from human rights abuses by other individuals as well as the government. It requires all public bodies including courts, law enforcement agencies, local authorities and other bodies carrying on public functions to respect and protect the human rights of individuals. For instance, Mr and Mrs Driscoll were living together for over 65 years and were unable to walk unaided. Mr Driscoll relied on his wife to help him move around whereas, she was blind and relied on her husband. When Mr Driscoll was moved into a residential care home, she wanted to move with him but was told that she did not meet the criteria. This was clearly breached of couple’s right to a family as protected by the Act 1998. Finally, the couple were, in result of a campaign, reunited. It also set a precedent that public authorities must treat everyone with fairness, equality and dignity. Furthermore, the Act 1998 makes the United Kingdom significantly advanced by laws which provide protection regardless of gender, sexuality, race or age. Until 1982, ‘male homosexual acts’ were crime in the Northern Ireland which was discriminated under the Act 1998 following a human right case brought by Jeff Dudgeon, a gay rights activist from Belfast. In another landmark case in 2000, the courts held that gay members of the armed forces to be open about their sexuality. The enforcement of the Act 1998 allowed individuals to challenge injustices before the domestic courts. In 1989 in Hillsborough disaster, 96 football fans were killed during a semi-final between Liverpool and Nottingham. The families fought for the justice though the protection was provided in the Convention. Therefore, in April 2016, the jury delivered their verdict under the Act 1998 that the fans were unlawfully killed.
The new enactment has a great deal of impact on the judiciary while conditioned the entire English legal system to fundamental process of review and where necessary, reform by the judiciary. The judiciary has played a vital role in order to decide the matters while taking into consideration the Convention rights. In case titled Associated Newspapers Group v Wade, Lord Denning declared that the press should be free in accordance with Article 10 of the Convention and there should be no interference by private individuals or bodies including trade unions. The Act 1998 opened up a debate between the domestic courts and the ECHR as the cases decided by the ECHR had no binding effect on the domestic courts, but the domestic courts can take into consideration such decisions while deciding the matter under the Act 1998. The courts have to give their independent interpretations in relation to the Convention. Before to the Act 1998, individuals were not allowed to file complain before the ECHR but to seek remedy before the domestic courts under the common law. However, after the enforcement of the Act 1998, an individual can seek remedy before the domestic courts first and finally before the ECHR as a final court of appeal. The main scheme of the Act 1998 suggests that the domestic courts shall take into the consideration the jurisprudence of the European Commission as well as the ECHR while determining the question related to the Convention rights. In other words, the European case laws still do not have binding effect on the English courts but the courts while deciding the case, may consider the European case laws it applies to the situation in hand. Therefore, the European case law will be given great weightage, but it is on the English judiciary to decide whether to follow or to not follow, if there is good reason to do so. Another reason is that the European courts are strictly bound by their results it has reached in earlier cases therefore, it is appropriate for the English judiciary to give independent interpretation and if the English courts’ decision is challenged it will be reverted to the European court.
The court’s decisions under the Act 1998, have no significant impact on criminal laws such as the impact on the Government's counter-terrorism legislation is not from the Act 1998 but from the decisions of the ECHR. The new legislation has not altered the constitutional balance between the Parliament, the Executive and the Judiciary. This argument is based on onethird civil and criminal cases decided by the House of Lords since the enactment of Act 1998 where most cases were decided under the common law. The decisions were found in consonance with the Convention and on various occasions, the plea of human rights is rejected that the same misconceived or irrelevant to the matter in hand. Moreover, there are only 12 occasions where the balance between the Parliament, the Executive and the Judiciary was affected. On 11 occasions, the superior courts upheld that the Acts of the Parliament were incompatible with the Convention rights and on each occasion, the Parliament passed further legislation to put the law back into conformity. The superior court decided the matters under Section 3 of the Act 1998 that require the courts, if possible, to interpret legislation in a way compatible with the Convention.
The Parliament have to make sure that all laws are compatible with the rights set out in the Convention although the Parliament is sovereign and have the power to pass any law incompatible with the Convention. The Act 1998 has forced more powerful influence upon policy formulation by the Government in three ways. Firstly, the Parliament will make sure the compatibility of laws with the Convention including positive statement of compatibility of all Bills, a memorandum of Bills required to be approved for introduction and scrutiny of the Joint Parliamentary Committee on Human Rights. Secondly, in response to the litigation which may force a change in policy. Lastly, through changes in behaviour driven by the greater immediacy of the Act 1998 that makes it unlawful for a public authority to act in a way incompatible with the Convention rights. Overall, the Act 1998 has better impact upon the relationship between the State and the citizens by providing a framework for policy formulation and ensure that the same is flexible for the whole population.
The judges have adopted the indirect horizontal approach while deciding the cases without creating a new cause of action even between private parties but passed the orders in relation to the compatibility of the Convention by developing the common law. The domestic courts have to apply their judicious mind because the European court has passed the order under the European system. Therefore, the Act 1998 has imposed the specific human rights obligations on the public and private authorities. The only problem in the Act that it failed to provide balance between the individual interests and community interests.