Assignment on Law Impact of Human Rights Act, 1998

Added on - 29 Apr 2020

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LAWPage2of6IntroductionThe Human Rights Act, 1998 (Act) is a legislation applicable in the United Kingdom and giveseffect to the different provisions of the ECHR, i.e., European Convention on Human Rights inthe laws of UK. As a result of this, major changes were made to the constitutional law of the UKand new powers were granted under the Act to the judges. However, as is claimed, this Act doesnot disrupt or destruct the Parliamentary Sovereignty and this is with particular reference tosection 3 and 4 of the Act (Campbell, 2017).Interplay of the Act with Parliamentary SovereigntyAs per the Parliamentary sovereignty principle, the Parliament has the power of both creatingand unmaking the law, as per its discretion and is deemed as the supreme law making in thenation. In other words, no other body in the nation can set aside a piece of legislation,particularly an Act of the Parliament. And in the end, there is a lack of official power which is inthe hands of the courts for striking down the statute in the Act and the Act is not ingrained.Hence, the same cannot be deemed as destructive of the Parliamentary Sovereignty and thismeans that the Parliamentary supremacy would continue (Barnett, 2017).The Act however, has provided the courts with two different measures which can be taken by thecourts. The first one in this regard is covered under section 3, as per which, the legislation is tobe construed in such a manner which is consistent with the rights stated under the ECHR, atplaces where it is possible. In case the same is not possible, there is a need to identify such aninterpretation which is consistent, which is done by the higher courts as they have the option to a
LAWPage3of6subsequent measure based on section 4, for issuing a statement of incompatibility (UKLegislation, 2017).Based on section 3, there is a need for the courts to interpret and provide proper effect to thestatute in such a way so that the same is attuned with the ECHR, as far as it can be done possibly.Apart from this, the usual purposive approach towards analysis is stronger than it.R v A(No. 2)[2002] I AC 45 was a case in which the use of interpretation by the courts in an illustratedmanner based on section 3 of the Act was highlighted. Under section 41(3)(c) of the YouthJustice and Criminal Evidence Act, 1999 pertaining to the ‘rape shield’ restricted the defence ofan individual (Davis, 2016). It was up to the House of Lords to judge the level to which this rapeshield was attuned with the Article 6 of ECHR’s right to fair trial. These provisions were held tobe not interference to the right to a fair trial as per Lord Steyn and also opted for a creativeinterpretation in order to make certain that the same was compatible with Article 6, in permittingthe cross examination of the plaintiff with regards to the current intimacy or intercourse amid thedefendant and the plaintiff (Swarb, 2016).Apart from this, the interpretation of the statute by the court based on section 3 does not presentan elucidation which is consistent with the Parliament’s intent while enacting the statute.Ghaidan v Godin-Mendoza[2002] EWCA Civ 1533; [2004] UKHL 30 was a case in which LordNicholls provided that in the normal court of legislation’s interpretation , there was aninvolvement of seeking the intention which was reasonably attributed to the Parliament in usingthe language, currently in question (Barlow and Lowe, 2015). Lord Roger went on to state thatno matter how powerful the duty covered under section 3(1) of the Act, it does not permit thecourt to change the provision’s substance in entirety for changing the provision from one inwhich Parliament states that something is to take place, particularly in saying that the same thing
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