United Kingdom is a lamentable country in the sense of freedom towards the citizens. Up to 1998, the citizens are not declared with the Bill of Rights which gives them the certain basic freedom which they deserved. During World War II, people ruled under Hitler in Germany had suffered from human tortures and abuses. This had been shown during the Holocaust back in World War II. The Convention was drawn up to protect the human rights of the people during the unmerciful abuse. In its articles of the Convention, the rights and freedom of the people of Europe are set out. The Council of Europe acquire the Convention in 1950. The Convention of Human Rights was signed by the United Kingdom government in 1950. However, the Convention was not a subset of English law until October 2000 when the Human Rights Act 1998 came into effect.
Several rights and freedoms were set out to individuals through the European Convention of Human Rights. For instance, the convention rights allow everyone to have the right to life and liberty. Individuals are also entitled to gain themselves a right to a fair trial. Besides, the Convention has given the community to have the rights to respect for a person’s private and family life. In prior to that, human beings also gained a significant right to freedom of thought of expression and the right to freedom of association.
The Human Rights Act 1998 incorporates the European Convention on Human Rights into British law. The act makes it unlawful for the public authority to act in a way which is against the Convention right. A statement known as ‘the existence of human rights 1998 does not guarantee the protection given under the European Convention of Human Rights’. This statement is partially true.
Firstly, the Human Rights Act showed a significant effect on the interpretation of law. For example, judges decide cases in which questions about Convention rights arise by referring to ‘s 2 of the Human Rights Act 1998’. This article state that the court must consider any judgement, decision, declaration or advisory opinion of the European Court of Human Rights. This shows that the court must follow the decision of the European Court of Human Rights instead of the conflicting decision of the United Kingdom court. In some cases, judicial bias will occur and it does not guarantee the protection given under the Convention of Human Rights which will gives individuals the rights to a fair trial. For instance, in the case of Re Medicaments (No2), Director General of Fair Training v Proprietary Association of Great Britain (2001), the court of appeal refused to follow the decisions of House of Lords in R v Gough (1993) on the test for bias. This was because the test of House of Lords is slightly different from the test offered of European Court of Human Rights. The act of biasness by the Court of Appeal is because the Court of Appeal does not give the defendant the rights to a fair trial. The court should take both tests of the House of Lords and the European Court of Human Rights into account to ensure a fair decision is made based on a fair judgement.
Next, Human Rights Act 1998 states that legislations should be read in a way which is compatible with the rights set out in European Convention. However, it is impossible for judges to declare all legislations to be compatible with the European Convention. Under these circumstances of declaration to incompatibility, the court will have to apply the legalisation as it stands but this could make the legislations incompatible with the European Convention. This shows that the protection of human rights is not protected under the Convention. For example, in the case of H v Mental Health Review Tribunal (2001), a patient was facing a burden of proof of making an application for release. A patient was not in a state to justify the continuing detention of the patient. This had shown that a breach in Article 5 of the European Convention of Human Rights had occurred. Article 5 sets out that everyone has the right to liberty and no one shall be deprived of their own liberty unless the law allows it by detention or arrest. However, an arrested person has the rights to be told of the reason of the detention. Article 5 of the European Convention of Human Rights is not applied in the case. Hence, it is an obvious fact that incompatibility of domestic law with the European Convention limits the rights of an individual and does not fully protect the rights of a person.
Furthermore, a government’s respond to declarations of incompatibility does breach the Article 5 (rights to liberty) and Article 14 (no discrimination on national or social origin). The law is changed when declarations of incompatibility occurs by the government. This could be shown as an example where the House of Lords decide in A and another v Secretary of State for the House Department (2004). The House of Lord declared that the Anti-Terrorism, Crime and Security Act 2001 was incompatible with the Convention. This cause foreign nationals to be assumed as a person who is involved in a terrorist activity. Hence, they are detained without a trial or investigation. This make foreigners to undergo a detention without a proper investigation or evidence. They are also not recognised and given the human rights to be accepted within the diversity as a foreigner in a particular national country. This scenario shows that human rights are not properly respected and it does not give people the protection under the Convention through Human Rights Act 1998.
Nevertheless, the statement ‘the existence of human rights 1998 does not guarantee the protection given under the European Convention of Human Rights’ is partially false based on circumstantial facts. The Human Rights Act 1998 states that interpretation of legalisation by the courts in England and Wales should be compatible with the Convention. The case of Mendoza v Ghaidan (2002) had their decision made by House of Lords ‘revisited’ by the Court of Appeal in Fitzpatrick v Sterling (2001). This case shows a specific example that human rights is protected under the European Convention. It follows the Article 6 of the European Convention which gives the defendant the rights to a fair trial. In Mendoza the Court of Appeal infringed that the provision of the Rent Act Infringed Article 14 of the Convention. It discriminated the partner who are known to be homosexual. Article 14 of Human Rights Act states that all rights should exist without any ground act such as sex, race, colour, language, religion, political or other opinion. The court pointed out that it should be a must to read the Rent Act in such a way which is compatible with the Convention. Hence, ‘as his or her wife or husband’ is read with the meaning ‘as if they were his or her wife or husband’. So, this gives the partner a tenancy to be transferred to them without any discrimination. This sends an important message that the Human Rights Act 1998 could give people the well-deserving rights which are aligned with the European Convention.
In viewed in a positive perspective, remedial order which is used to amend an act in Human Rights Act 1998 gives and improves the rights of a person as a human being. In the case of B and L v UK (2006), a woman had a relationship with the father of the man she divorced. It is actually legal for a woman to live with her father in-law. However, the Marriage Act 1949 prohibited them from getting married. This is due to the reason that her first husband is still alive. A private act of Parliament could enable her to legally give her the permission to legally marry her father in-law. They argued that prohibiting them to marry is breaching Article 12 of the convention. Article 12 gives a person the rights to marry. The European Court of Human Rights held that a breached in Article 12 occur and a remedial order rectified the Marriage Act 1949. Then, it gives them the rights to marry. The remedial order used in correcting declaration of incompatibility in Human Rights Act 1998 shows that a person can have their rights protected under the Convention Rights.
Human Rights Act 1998 gives the rights for the public to ensure that everyone is compatible with the rights we are entitled to have under the European Convention of Human Rights. If a public authority threatens or violate a person’s rights to life, proceedings may be brought against the authority. If a person’s rights are breached, the court would decide to make an appropriate judgement to award a person remedies. Damages are only awarded to provide justice. This way of bringing a case where human rights is breached gives people a feeling of secureness to live in the world as human beings. Humans do deserve rights to live without fear of being severely abused mentally and physically by the public authority. This gives a person the rights to live under the protection given under the European Convention of Human Rights.
As a conclusion, Human Rights 1998 does guarantee the protection given under Human Rights Act 1998. However, it does not fully guarantee the protection under Human Rights Act 1998. Declaration of incompatibility Human Rights to the Convention does occur. But, with the government’s respond to change the law and undergo remedial orders to amend the law could help to protect the human rights as shown in the case of B and L v UK (2006). Human beings should be given the rights to live through the law enforced in Human Rights 1998 which is ratified domestically by the European Convention. Human beings should also practice a good morality to not breach the rights of human beings to ensure that we live in without fear in justice and harmony.