Human Rights Act 1998 Sample answer


Discuss the impact of the Human Rights Act 1988 on the legal system of England and Wales

The Council of Europe was set up after World War 2 to achieve unity among countries in matter such as protection of fundamental rights. The Council then drew up the European Convention on Human Rights and Fundamental Freedoms (ECHR) which was signed in 1950 and ratified by the UK in 1951 and became binding in 1953. The European Court of Human Rights (ECtHR) was set up in 1951 to hand claims made by one state against another, or by an individual against a state, regarding breaches of the convention.

The Human Rights Act 1998 (HRA) incorporated the convention (and 1st protocol) into domestic law, and it came into force in October 2000. Section 7 HRA states that the rights in the Convention are now in our law; meaning that they are directly applicable in UK courts so a citizen of the UK can argue breaches of rights in their own courts. This is a huge change in position from before 1998, where individuals had to petition the ECtHR which was a slow and expensive process which often resulted in inadequate remedies. A case could only be heard by the ECtHR if a state had recognised the right of individual petition (which the UK agreed to in 1966) and the individual had exhausted all domestic remedies first, and filed the case within six months of the final domestic decision.

Section 3 of the HRA requires that ‘so far as possible to do so legislation must be read and given effect in a way which is compatible with the Convention rights’. This is known as the interpretive obligation, meaning that judges in England and Wales must interpret Acts of Parliament so that they do not breach any of the rights in the Convention. If this is not possible, judges can make a declaration of incompatibility under Section 4 HRA. This is a statement that an Act of Parliament is in breach of the convention and places the Government under a legal obligation to consider changing the law to comply with the ECHR. Section 10 HRA allows for an accelerated (fast track) procedure for doing this so that the law can be introduced quickly. For example, in the case…


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