Analysis of the Human Rights Act, 1998

Analysis of the tender Rights Act, 1998 tender Rights uprightnessDespite the sympathetic Rights Act 1998, the courts have failed appropriately to localize the scope for the exercise of founder of the slumber top executives.The gracious Rights Act 1998 sure royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of give tongue to Act was to harmonize the domestic faithfulness of the linked existentm with the European Convention on Human Rights. To reaffirm the commitment of the UK to man rights and obliging liberties, it is now possible chthonian the said Act to file a claim for violation of the ECHR without going to the European court of Human Rights in Strasbourg. Says WeinsteinThis ability to transcend discipline justice, and to compel revision of such law to comport with rights guaranteed by the European Convention in a blanket(a) range of atomic number 18as, most often within the exclusive purview of national and local courts, is of historic none. Gener solelyy, nation states have been the final arbiters of most issues poignant their citizenry and within their borders. By treaty, the signatory nations of Europe have apt(p) the ECHR binding authority to decide causal agents affecting their citizenry and other mortals put forward to their authority.In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECHR decision. These examples enlarge the fantasy of what is increasingly being referred to as an evolving European supranational identity. The ECHR grants legal provide to any several(prenominal), non-g all overnmental organization, or group claiming be a victim of a violation of the European Convention by a ECHR signatory nation, and to put to work cases before it, as does, in applicable cases, the European Court of rightness (the ECJ), the court of the European Union, based in Luxembourg.Equally i mportant, it prohibits any common body from behaving in a manner that is incompatible with any of the rights guaranteed under the ECHR.The Human Rights Act has gone a long way in limiting arbitrary actions from familiar bodies, in ramifyicular, practice of law officers. It can non be denied, however, that the laws on break-dance of the peace grant have historically been so great in scope that in some occasions, human rights violations arise. The definition of check of the peace (also kn receive as split up of the kings peace) has been discussed in the Court of Appeal decision of Howell, where it was stated as followsWe are hearten to say that in that respect is a breach of the peace whe neer harm is actually done or is likely to be done to a someone or in his presence his property or a person is in fear of being so harmed done an assault, an affray, a riot, outlaw(a) accumulation or other disturbance.It used to be that the prospect of vehemence alone would not be en ough to be considered a breach of the peace, as in the comment of Farqhuarson LJ that The act which puts someone in fear of violence taking place entitles a natural law officerto stick the actor however it is not a breach of the peace, for the violence has not provided occurred. There has been scant support for this view, such that in the salute time, breach of the peace also embraces behaviour likely to cause a violent reaction, charge up if such behaviour is not of itself violent.The policy of the law has been recently discussed in the case of Humberside Police v. McQuade, where it was held that the policy of the law relating to arrest for breach of the peace is plain enough. Its purpose is to deal with emergencies. The advocate of arrest may be exercised without a warrant and belongs to the ordinary citizen as much as to the constable.In a handful of cases, the European Court of Human Rights has found that there is no contradiction between the concept and the Human Righ ts act of 1998. The most cited case is the case of McLeod v. United Kingdom , where the Court held as followsThe concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is move further when an individual causes harm, or appears likely to cause harm, to persons or property, or acts in a manner the natural consequence of which would be to provoke violence in others.There are several powers that underlie a breach of the peace. The first power is the power of arrest. In Howell the conditions for making an arrest on this basis were laid down, to wit Where (1) a breach of the peace is pull in the presence of a person making the arrest or (2) the arrestor believes that such a breach willing be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed and it is actorably believed that a renewal of it is threatened.Another power is the power to move into premises. The leading case for this is the case of Thomas v. Sawkins which involved a confrontation to protest the Inciting to Disaffection Bill. Wary that seditious and inflammatory statements would be made, the policemen stormed in and attended the meeting, even though they were aware that they were unwelcome. In a strong decision, the Court ruled that the presence of the police officers was lawful. Stone explains why this is an frightful prospectA prefigure of uncertainty, however, arose from the fact that the meeting took place on private premises. Did the power of entry recognised in the case only apply to meetings to which the public were invited, or are the police entitled to discharge any premises on which a breach of the peace is occurring or is likely to occur? The examines in Thomas v Sawkins appeared to prehend importance to the fact that they were dealing with a public meeting, moreover t he habitual law of trespass makes no distinction of this kind. If those attending a public meeting on private premises do so on the basis of a licence from the occupier, then that licence may be withdrawn, from the police as much as anyone else. If the police have the power to override the withdrawal of a licence, then there seems no reason why that power should not exist on all occasions. The outcome is that Thomas v Sawkins had the effect of giving the police a power to enter any premises to prevent or deal with a breach of the peace.Another power police officers have is the power to swear/restrict/compel an individuals movement. The seminal case for this is the case of Moss v McLachlan , which involved militant striking miners prevented by policemen from joining the ranks of more than moderate miners. The Court upheld the actions of the law enforcement agents, saying as followsIf the police feared that a convoy of cars travelling towards a working coal field baby carriage ba nners and broadcasting, by sight or sound, hostility or threats towards working miners aptitude cause a violent episode, they would be justified in gimpy the convoy to enquire into its destination and purpose. If, on headping the vehicles, the police were satisfactory that there was a real curtain raising of the occupants causing a breach of the peace one-and-a-half miles away, a journey of less than five minutes by car, then in our judgment it would be their work to prevent the convoy from proceeding further and they have the power to do so.There are many human rights issues that are affected by an overly-broad interpretation of breach of the peace. The first principle that they may invoke is the principle regarding Freedom of Thought, scruples and Religion which is enshrined in term 9. There is no dearth of cases that they may cite in order to support their position. For example, in the case of Arrowsmith v. United Kingdom, it was stated this right refers to acts that are an expression of a religion or belief. This right was raised before the ECHR for a variety of reasons, such as employment and prisoners rights. While certainly, the courts have taken quite a regulative approach in applying the provision and granting relief under it, it has been restrictive when the acts sought-after(a) to be justified are acts that are patently illegal and virtuously wrong, such as assisted suicide or the distribution of cannabis. These acts cannot be compared to the simple act of dancing or organizing. The dangers of cannabis and euthanasia impregnablely cannot compare to the conjectured danger in the case at hand, and thus, the latter should decline under the ambit of escapeddom of religion.There is also the loosedom of aggregation and association argument (Article 11) that may be raised. Aside from imposing a negative obligation on law enforcement agents not trample on protected rights, they must secure the effective enjoyment of these rights. In the case of Plattform Arzte fur das Leben v. Austria the ECHR held that Genuine effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the state not to interfere Article 11 sometimes requires commanding measures to be taken, even in the sphere of relations between individuals, if extremity be.Freedom of Expression which may be found in Article 10, can likewise be cited. There can be no doubt that freedom of expression is of paramount importance. While the right to free reference is a crystallized principle that has been place almost since the showtime of time, enjoying a cherished position in the bill of rights of virtually all civilized legal systems, the interpretation of what constitutes free and protected speech lock in has yet to be perfectly refined. This provision has been invoked many times over in the course of history, whether within the European Union or outside, successfully and unsuccessfully and Courts have had many opportunities to set stan dards and devise guidelines to determine if the speech in question should be protected or not. It is important to pock that Article 10 protects not merely the substance of the idea but also the form that they are conveyed. This was the ruling in the case of Oberschlick v. Austria and it could be applied here. The form of the expression should also be considered protected speech. This is bolstered by the fact that in the case of Stevens v. United Kingdom, the concept of expression covers even actions.It becomes more difficult when the right to free speech competes with another right, in this case, the right of the public to order, or to put it more classically, the right of the Queen to her peace. In easy cases, all that should be done is waitress through jurisprudence until one finds the applicable case with similar facts. In hard cases with novel facts, the role of the judge becomes infinitely more difficult. The boundaries are ever-shifting and internally, the judge will be tryi ng not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the natural was trying to say. Social and political values inevitably come to the fore. To quote legal writer Thomas Streeter, It is in the character of linguistic communication, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment he will always in one way or another be forced to make a choice about whether or not he thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.What distinguishes the area on free speech from other legally-indeterminate areas is that it is inextricably intertwined with and largely dependent on language which, as many eminent linguists have said, is arbitrary in the mavin that tautings cannot be derived from anything logically-inherent in the words. These meanings are merely assigned meanings born of the corporate experiences of people in a community and this system of interpretation is never static. As stated by Streeter, Aside from language in ecumenic and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages.Another issue is the right to collect process. Legal systems in the civilized world whether in civil or common law jurisdictions have, at least in theory, given primacy to the rights of the accused, intellect that ambiguity should be resolved in his or her favor. This, however, does not mean that one must let down his or her vigilance and stop guarding against possible infringement of constitutional guarantees by overzealous judges, particularly at a time when human rights advocacy for the accused has been made less-traveled by the rising rate of disgust.It used to be th at the primacy of the demesne is the center of attention principle of the international legal regime as it is traditionally known. This, however, has been challenged by the alarming rise of state-sponsored human rights violations that has prodded the community of nations to recognize that its more printing press duty is to protect the individual from systemic and institutional atrocity, even at the expense of its legal fictions. To quote from Hersch Lauterpacht, in his article International Law and Human Rights,An international legal system which aims at effectively safeguarding human freedom in all its aspects is no longer an abstraction. It is as real as mans interest in the guarantee and the delivery of his inalienable rights as a rational and moral being. International law, which has excelled in punctilious insistence on the honour owed by one autonomous State to another, henceforth acknowledges the sovereignty of man. For fundamental human rights are superscript to the l aw of the sovereign State.This is the raison detre bathroom the International Convention on Civil and Political Rights which entered into force in 1966 and the Human Rights Act of 1998. State parties were cognizant of the need to protect civil and political rights of citizens from possible rape by the state. The ICCPR explicitly declares No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. It is undeniable that this includes testimonial of citizens from agents of the state such as members of the police force.And yet, we see how police officers routinely violate the human rights of those they apprehend. The implicit message is that these are criminals anyway thugs, petite thieves, gangsters, punks, drug addicts, alcoholics and they are doing society a favor by treating them brusquely. An oft-heard exculpation is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. However, it cannot be gainsaid that the legal restrictions on essay make police brutality inimical to law enforcement, rather than the opposite. Given the propensity of law enforcement agents to manhandle an accused or use unnecessary force to tighten and subdue him, they should be taught that such behavior only bolsters crime rather of eliminating it. First it emboldens criminals to seek revenge and go on vendetta killings and perpetuates a vicious cycle of crime that exacerbates the situation even further. Second evidence procured by virtue of such rough manhandling will not be admissible in evidence and the criminal they seek to put behind bars will be allowed to go back to the streets.Most importantly, however, even hardened criminals are covered by the human rights guarantees in the nature and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone. plainly perhaps the most recent caselaw on breach of the peace with respect to the concept of h uman rights is the recently concluded Fairford Coach Action where the police detained 120 protesters on their way to an anti-war demonstration in Gloucestershire. The Public state and Criminal Justice Act was used by the policemen. The Law Lords lastly ruled in favour of the protesters. In 2004, it made this crucial pointThe rights to freedom of expression, and assembly and association, which are protected by Articles 10 and 11 of the ECHR respectively, are of the greatest importance to the proper functioning of any democracy. all intrusion upon the rights, either by the developing common law or by the intervention of statute law, has to be jealously scrutinised.In conclusion, spot certainly there are significant inroads brought about by the Human Rights Act of 1998, these still must be reckoned with the laws on breach of the peace. It is the duty of the courts and of every citizen to be vigilant against encroachments by police officers. The law is there to provide refuge, but ed ucation and awareness are primary.BibliographyHoffman, D. Rowe, J. (2003). Human Rights in the UK An Introduction to the Human Rights Act 1998. London Pearson Longman.Lauterpacht, Hersch. 1950. International Law and Human Rights. Connecticut Archon Books.Stone, R. (2001) Breach of the Peace The Case for Abolition. 2 Web. JCLI.Streeter, T. (1995) Some Thoughts on Free Speech, Language and the Rule of Law. In Jensen, R. and Allen, D. (Eds.) Freeing the First Amendment comminuted Perspectives on Freedom of Expression.31-53. New York University Press.Weinstein, B. Recent Decisions from the European Court of Human Rights. American Society of International Law. May 2000. visited 21 January 2007. http//www.asil.org/insights/insigh45.htm