Evaluate the Impact of the Human Rights Act 1998 on the Protection of Human Rights in the Uk

In 1950 the UK, alongside 47 other countries, signed the European Constitution of Human Rights to avoid future devastation like World War 2. However this membership of the ECHR didn’t involve human rights being apart of our own UK law, so using the convention usually meant taking cases to the European Court of Human Rights in Strasbourg which was time consuming and expensive. For example the ‘right to die’ case of Diane Pretty.

During Diane Prettys fight for the right to die, the Human Rights Act1998 was implemented which made human rights enforceable in UK courts e.g; article 8 the right to privacy, article 6 the right to a fair trial, article 2 the right to life, article 3 freedom from torture etc. The Human Rights Act 1998 meant that cases on human rights can now be held in all UK courts before the European Court in Strasbourg. In fact it is held that all UK courts must be exhausted before the European Court is approached. Although you need a lot of time, money and commitment to go through this lengthy process if your case is rejected in all UK courts and this limits a lot of ordinary people. Thus impacting how far our human rights are actually protected in the UK.

Another condition imposed with the Human Rights Act 1998 is that it requires all current and future UK laws to be compatible with human rights. If not then under S4, judges can make a declaration of incompatibility which advises Parliament to make changes to the current legislation to make it compatible with human rights. S4 is a clear demonstration of our rights being better protected in the UK as law that does not protect them is altered. However the judges can only advise Parliament of the incompatibility. Parliament may not have the time or it may not be a priority to change the piece of legislation stated and therefore nothing may be done about it which limits how far our human rights are protected. An example of the use of S4 declaration of imcompatibility is Bellinger v Bellinger where the appellant was a transgender male to female who married a male shortly after her operation to remove all male reproductive organs. She claimed that S11c of the Matrimonial Causes Act 1973 was incompatible with article 8 the right to privacy and a family life.

The idea of S4 has been criticized for being undemocratic as it is giving judges too much power in what is the law. However Parliament gave them this power to do so and judges cannot change law themselves but only advise parliament to do so. Also the fact that Parliament gave them this power means that they can also take it away if needs to be. Therefore Parliamentary sovereignty is not affected.

A declaration of incompatibility can lead to remedial action being taken which is under S10 of HRA where ministers can take a fast track legislative process because he has ‘compelling reasons’ for doing so. For example the Marriage Act (remedial) Order 2007 was implemented