Effect of The Human Rights Act 1998

Effect of The Human Rights Act 1998 Section 3(1) of the Human Rights Act 1998 provides that: â€Å"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.† Whilst this does not â€Å"affect the validity, continuing operation or enforcement of any incompatible primary legislation,† or â€Å"affect the validity, continuing operation or enforcement of any incompatible subordinate legislation,† national legislation must be completely incapable of being compatible with the European Convention on Human Rights for the Courts in the UK to deliver a ‘declaration of incompatibility, rather than to construe the legislation in favour of the party relying upon a Convention right. Regarding the interpretation of the Convention rights, section 2(1) of the Human Rights Act 1998 states: â€Å"A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights, (b) opinion of the Commission given in a report adopted under Article 31 of the Convention, (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.† The Court has held that, when scrutinizing executive decisions and determining their complience with the Human Rights Act, section 2 of this Act compels them to take into account the jurisprudence of the European Court of Human Rights. However, it has been made clear that â€Å"The [courts] are not bound by the decisions of the European Court.† This was confirmed in the case of Boyd v The Army Prosecuting Authority. However, in the case of R v Secretary of the State for the Home Department, a case concerning an alledged breach of Article 8 of the ECHR; it was held, in reliance on the cases of Campbell v United Kingdom and R. v Secretary of the State for the Home Department (Ex p. Leech), that when assessing the validity of an executive action, the court must rule on the proportionality of the executive decision in question. Article 8(2) of the ECHR states: â€Å"There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.† The Queens Bench held that where an executive decision sought to infringe Article 8(1) of the ECHR, that an investigation into the proportionality of that decision is required by virtue of Article 8(2) of that Convention. From these recent case decisions it is immediately clear that the Human Rights Act 1998 has had a major impact on the pre-existing public law framework of the United Kingdom. The Courts are bound to interpret national legislation in accordance with the rights contained in the ECHR, even where this means that national legislation has to be interpreted beyond its literal or purposive scope, and the Courts have show increasing willingness to be influenced by European jurisprudence when interpreting the Convention. On top of this, it seems that the case of R v Secretary of the State for the Home Department has introduced ‘proportionality as a new grounds for commencing a judicial review of an exectuive decision. To this extent, the Human Rights Act 1998 must be considered a tenet of the constitution of the United Kingdom, at least to the extent that it impacts upon the scope of the legitimate powers of the executive. However, that being said, section 3(2) of the Human Rights Act and the interpretation of this section by the House of Lords in the case of R v A (No.2) does suggest that where the legislative enact legislation which purports to expressly limit the scope of a Convention right, the Courts are not entitled to rules in favour of a claimant, by reinterpreting that provision. Let us now ask ourselves an important question: For an Act to be constitutional surely it must be the case that the legislature cannot bypass its provisions, while it remains in force, simply by indicating its intent to do so, or acknowledging that it does so? Let us therefore turn to examine how the Courts deal with cases where legislation is completely incompatible with the rights conferred under the ECHR, or where the government have acknowledged that a new Bill is incompatible with the ECHR: In regards to incompatible legislation, section 4(2) of the Human Rights Act 1998 states: â€Å"If the court is satisfied that [a] provision is incompatible with a Convention right, it may make a declaration of that incompatibility.† Section 4(4) of the Act goes on to provide that: â€Å"If the court is satisfied- (a) that the provision is incompatible with a Convention right, and (b) that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility.† The effect of such a declaration, however, is neither to render that legislation invalid and ineffective, nor to provide the parties in the case with a form of redress, but rather to alert the executive that the legislation in question is incompatibe. Despite the fact that the Courts have made it clear that a declaration of incompatibility is a â€Å"last resort†, in order to argue that the Human Rights Act 1998 is a constitutional enactment, it must be shown that where the legislative have introduced legislation which is incompatible with its provisions, that they have acted beyond their constitutional powers. In regards to ‘statements of compatibility, it is clear that the legislature are legally entitled to enact a Bill without such a statement, as per s19(1)(b) of the 1998 Act. An example of such an Act is the Sexual Offences Act 2005. This must be deemed to undermine the UKs commitment to abiding by the rights enshrined in the ECHR. Earlier in this essay we have asked the question: For an Act to be constitutional surely it must be the case that the legislature cannot bypass its provisions, while it remains in force, simply by indicating its intent to do so, or acknowledging that it does so? In light of the fact that the Act does not impose any duty of action on the executive to amend incompatible legislation, nor to make sure legislation is compatible before it is enacted, it cannot be said to undermine the constitutional nature of this Act because the legislature are not acting outside of the scope of their powers in the legislation. If this argument is correct, then we must ask ourselves what characteristics of the Human Rights Act 1998 suggests that it ‘has found a place at the heart of the constitution of the United Kingdom? In the case of Thoburn v Sunderland City Council, Lord Justice Laws defined a ‘constitutional statute in the following terms: â€Å"In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights. (a) and (b) are of necessity closely related: it is difficult to think of an instance of (a) that is not also an instance of (b).† We have already seen how the Courts have used the Act to give significant force to the ECHR, interpreting legislation widely to give effect to the Convention rights, allowing decisions by public bodies to be challenged for being a disproportionate breach of Convention rights and only issuing declarations of incompatibility as a ‘last resort. These features of the Human Rights Act 1998 and the way it has been applied by the Courts certainly satisfies Lord Justice Laws definition. This supports the contention that the Human Rights Act 1998 is part of the constitution of the UK, but does not confirm whether it has truly found a place at the heart of the constitution. Let us now look at recent political developments that serve to undermine this assertion: In England there is currently much talk about the possibility of repealing the Human Rights Act. For example, in 2006 David Cameron made a public statement that the Conservatives would scrap, reform or replace the Human Rights Act unless the government [could] reach a memorandum of understanding to enable foreign criminals to be deported to their countries of origin†. [Guardian, May 12 2006]. Likewise, a recent Review of the Implementation of the Human Rights Act, stated: â€Å"it is worth considering briefly an option which has been subject to recent comment. This would be the option of repealing the Human Rights Act and enacting a separate set of fundamental rights which would not, in law, be connected to the European Convention on Human Rights. The suggestion is that these rights could be given some sort of entrenched or superior status in our constitution.† [DCA, 2006, p5]. These sources strongly imply that the Human Rights Act 1998 has not found a place in the heart of our constitution, despite there being little doubt about its constitutional nature. In the final section of this paper, let us turn our attention to the place of the Human Rights Act 1998 in the constitution of Scotland, and its prospects for the future in this devolved jurisdiction: In Scotland, the purposes of the Human Rights Act 1998 were given greater force by the introduction of the Scotland Act 1998. Section 29 of this Act states: â€Å"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament. (2) A provision is outside that competence so far as any of the following paragraphs apply (d) it is incompatible with any of the Convention rights or with Community law.† This goes much further than the Human Rights Act 1998 which allows UK Parliament to enact incompatible provisions as long as an assessment has been made in accordence with s19(1)(b) of the Act. Coupled with the recent enactment of the Scottish Commission for Human Rights Act 2006, which established the Scottish Commission for Human Rights, it seems clear that the ECHR has found a central place in the constitution of the devolved jurisdiction of Scotland. However, in response to the statement at the top of this paper, we can hardly say that these developments put the Human Rights Act at the heart of the constitution of the United Kingdom; after all, these developments do not pertain to the Human Rights Act 1998, except in so far as this Act is used to define the Convention rights which are to be adhered to by the Scottish executive. Conclusion In conclusion, whilst the Human Risghts Act 1998 can certainly be described as a constitution enactment, recent political developments in the UK which suggest that this Act might soon be repealed undermine the contention that the 1998 is ‘at the heart of the constitution of the United Kingdom. In Scotland, the Human Rights Act 1998 can only be said to be at the heart of the constitution to the extent that this Act is referred to by the Scotland Act 1998, an Act which goes much further in granting legal protection to scotish citizens for breaches of Convention rights than the 1998 Act.

Predatory Men in William Faulkner’s Novel, Sanctuary Essay -- Faulkner

Predatory Men in William Faulkner’s Novel, Sanctuary William Faulkner’s novel, Sanctuary, is replete with subtlety and symbolism. En route to Old Frenchman’s Place, Temple Drake thinks of baseball players in the Saturday game she is missing as â€Å"crouching, uttering short, yelping cries like marsh-fowl disturbed by an alligator, not certain of where the danger is, motionless, poised† (37). In creating such an image of predation, Faulkner prepares the reader for Temple’s arrival at Old Frenchman’s Place —the prey/predator metaphor lending itself perfectly to Temple’s situation vis-à  -vis the men there. Throughout the novel, Faulkner portrays Temple as feline or animal-like. When she objects to Gowan Stevens driving to Lee Goodwin’s in search of alcohol, he tells her, â€Å"Don’t get your back up, now† (37); and she is constantly springing from place to place and clawing at doors or blankets, as if she were an agile and jumpy cat. When Goodwin finds her crouching in the corner of his kitchen he lifts her â€Å"by the scruff of the neck, like a kitten† (52), and Popeye similarly grips her b...

Cold War between 1945-1949 Essay

The Cold War starting from 1945 to its end had lasted for 44 years. 44 years of different degrees and stages of tension between the two Superpowers. Who was to blame for the outbreak and development of the Cold War? Both sides were to blame, and the Soviet policies between 1945 and 1949 were, thus, responsible for it to a certain extent. Economically, the Soviets did not allow its Eastern Bloc to receive the US’s Marshall Plan aid, and set up Comecon to oppose it, and these actions by the Soviets increased the tensions between the US and the USSR. Marshall Plan was first introduced by Secretary of States George C. Marshall at Harvard University on June 5, 1947 and was passed by the US congress in March 1948. The Marshall Plan was aimed to help the reconstruction of the post-war European countries, and the countries that needed it. It was an economic and technical aid. 10% of the American GDP would go into the aid. As the British Prime Minister Winston Churchill had once said, â€Å"It was the most unselfish act in history, and it was a stunning success.† However, the Russian historians can argue that it was not the most unselfish act in history. Their reason was that if the countries wanted to receive the aid, it had to open up to America and would give America a chance to look into their infrastructures and how damaged the countries were. This was not what Stalin wanted; he did not want the USA to know about how devastated Soviets was. Therefore, the USSR foreign minister, Vyancheslav Molotov, called the Marshall Plan â€Å"the Dollar Imperialism†. The USSR then in 1949 set up Comecon as a counter-Marshall Plan organization formed primarily to prevent the Central European countries that had expressed interest in the Marshall Plan from getting the money. Thus, the increased in tension because of the USSR preventing countries from taking the Marshall aid could not fully blamed on the USSR. Politically, Winston Churchill, the former British Prime Minister, gave the Fulton Speech, which only contributed to the increasing tension between the two superpowers. On March 5 1946, Mr. Churchill gave his â€Å"Sinews of Peace† in Fulton, Missouri, which was the famous â€Å"Iron Curtain† Speech, and in which he condemned the USSR for taking over other countries and called for the union of â€Å"English-speaking† countries to fight it. For this, the Russian  called Churchill a ‘warmonger’. The reason why this happened was because on October 9, 1944, Stalin and Churchill had a secret pact in Moscow where they agreed on the ‘Spheres of influence in Balkans’. In other words, Churchill gave Soviets the part which it took over later on, and condemned Stalin for doing what he agreed on. His was acting as a hypocrite. Therefore, the decline in the relation between the USSR and the West was not solely because of the USSR. Militarily, the Berlin Blockade in June 1948, which was the closest point where the World War Three might break out before Cuban Missile crisis, was started by Stalin, so one may argue that it was Stalin’s fault. In the orthodox point of view, it was Stalin who started the Blockade and nearly pushed the world into WWIII, so it was his fault. However, when the causes of the Blockade were examined, one may argue otherwise. On June 1, 1948, America and France announced that they were going to combine their zones in West Germany and create a new zone call the ‘Bizonia’. They broke the agreement they signed with the USSR in the Potsdam Conference in July 1945, in which they agreed that they would split Germany into four zones so that Germany would not be strong enough to stand up and start WWIII again like what Hitler did. They broke the agreement and broke the remaining trust between them and the USSR. Furthermore, in Potsdam Conference, they also agreed that the USSR could take 10% of the other three German zones GDP as reparation, but they never paid the money. Even Stalin himself said that the real reason why he started the Blockade was because of American and France’s introduction of the new currency in the West zone which directly cost the East Germany a lot of skilled workers because they all fled to the West zone, the effect of the two causes listed previously above could not be neglected. Therefore, even though it was Stalin who started the blockade but it was not entirely his fault in doing so. From the reasons above, examined from military, economic and political point of views, the outbreak and development of the Cold War was not only the USSR’s fault, but also the West. Therefore, the Soviets was responsible for it to only an extent.

Ways in which Blake Uses Images of Animals and Plants Essay

Ways in which Blake Uses Images of Animals and Plants William Blake was born in 1757 in London and died in 1827. His most famous works are called Songs of innocence and Songs of experience. Songs of innocence written in (1789) were easy to understand, very simple vocabulary, simple verses, with ideal, happy and pastoral locations. In Contrast Songs of experience written in (1794), had more difficult ideas and vocabulary, with negative views, which where realistic and sad. In this essay I will be studying how Blake uses animals, plants and the natural world to create pictures for the reader of what he thought life was like in eighteenth century England. I will be comparing, â€Å"The Echoing Green†, â€Å"The Garden of Love† and†¦show more content†¦This creates an opening picture for the reader and places them right into the poem itself, which is a very good technique adapted by Blake to attract attention towards the poem, also which has been used in number of Blake’s poems. Some examples of this technique are, â€Å"Skies,† which shows that the sky must be blue, as it has been used in this context, hinting towards the fact that it’s sunny and hot. Also we have â€Å"spring† as another example that backs up my previous point of the location being sunny as the season that is currently running is â€Å"spring†. â€Å"Birds,† show that there are not just people there but also animal life forms that give the location a natural and more rural feel. Lastly moving on to a quote which is also used within the title, â€Å"Echoing Green.† this quote constantly reminds the reader that the is masses of green around, almost as if it was â€Å"echoing† to you. Furthermore this is a very vital time of the year as it is the time of new life and new flowers, this is the time when the birds start to chirp, and then the flowers start to blossom. Also this is more the reason why this poem has been included in the innocence section, as it shows time of joy and happiness. 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