The Human Riahts Act 1998 And Its Implications On The Human Rights Protection In The UK

Britain boasts a long history of representative democracy and attaches importance to the protection of civil liberties far ahead of other democracies in the world.Epoch-making documents in its history such as the Magna Carta,the Petition of Right and the Bill of Right have demonstrated its legacy and spirit of valuing human rights.Yet its mechanism of human rights protection has long been controversial,usually owing to lack of codified constitution.Different from countries with codified constitution such as the United States of America,Britain relied on common law,statutes and international treaties to which it is a party in the protection of human rights.The European Convention on Human Rights(ECHR)is one of these treaties.However,Britain was quite slow in bringing the Conven-tion rights back home to make them enforceable in domestic courts.It was also until 1996 that Britain gave individuals the rights of petition in the European Court of Human Rights(ECtHR)if they thought their legitimate Convention rights and freedoms infringed.Being the culmination of debates about the incorporation of the ECHR into domestic law starting in the 1960s,the Human Rights Act(HRA)1998,adopted by the Blair Labour government,incorporated part of the rights and freedoms contained in the ECHR,showing quasi-constitutional significance by demonstrating that legislation both before and after the HRA must comply with the Convention.If not,the courts will issue a declaration of incompati-bility and Parliament can choose to carry on implementing the legislation or set up a fast track through which the legislation will be revised.It is a compromise between moving to a written constitutional arrangement and retaining parliamentary sovereignty.The HRA 1998 has provided,in the eyes of some people,a quasi-constitutional pro-tection for civil liberties in the UK.Apart from clearly stating part of the Convention rights and freedoms that the UK citizens can enjoy,it also conferred explanatory and declaratory power upon the judiciary,bringing about a restructuring of power between three branches of state in human rights protection.However,over the past twenty years since its enact-ment,the Act has drawn a lot of controversies and criticism for weakening parliamentary sovereignty,putting the judgment of British cases into hands of the ECtHR,protecting in-terests of unpopular minority groups such as criminals and terrorists rather than rights of the law-abiding majority,etc.Therefore,not long after its coming into force,there has been proposal and plan to repeal the Act with a UK Bill of Rights.This undertaking was most warmly embraced by the Conservative who mentioned it in its 2010 and 2015 election ma-nifestos.However,the lack of majority for such proposal in the House of Commons made it impossible to turn into reality right now and being caught up with the negotiation of Brexit deal,the government seems to have put the course aside for the time being.This dissertation,against this backdrop,pays attention to British human rights protection and the implications of the HRA on the mechanism of protection.It tries to answer the question that to what extent the HRA 1998 has solved the dilemma that British human rights protec-tion had encountered when the Act was born and why it has run into stalemate and is even at the risk of being repealed.The dissertation is divided into four parts.Part one deals with human rights protection in the UK before the enactment of the HRA by common law and statutes,as well as the debate about whether the ECHR should be incorporated into domes-tic law.Part Two is concerned about the mechanism and principles of the HRA 1998,while Part Three examines its implementation and impact from three perspectives.The first one is whether or not it has helped form a human rights culture in governance,the second one is whether the UK has welcomed a weakening parliamentary sovereignty and headed to-wards a constitutional state because of the Act,and the third one is its controversies and challenges in terms of anti-terrorism legislation.Part Four explores the scope of a UK Bill of Rights and its prospect in the context of Brexit.Building upon the previous literature in this regard and drawing inspirations from first-hand resources such as policy documents and commission reports,this dissertation adopts an interdisciplinary approach by combining both the legal and political perspective of the HRA in the analysis of its implication on the human rights protection in the UK.The dissertation took a dialectical attitude in the analysis of the achievement of the HRA,tak-ing note of the popularity of rights and liberties stated in the Act among the public and the insufficiencies of the Act in both legal and political perspectives.Moreover.this disserta-tion contributes to the existing literature about the HRA and British human rights protec-tion by trying to analyze the prospect of the Act under the circumstance of Brexit and the impact of Brexit on human rights protection framework in the UK.The dissertation finds that the HRA did provide quasi-constitutional protection for the Convention rights and freedoms in the UK and improve the design and delivery of public services since the public authorities are fear of the legal risk and technical problem that human rights cases might bring.However,courts and tribunals in the UK remain powerless to override or set aside the statute that is incompatible with the ECHR.Parliament remains paramount and prin-ciples of the HRA are easily undermined and even eroded in times of emergency for the sake of national security.The potential exit of the UK from the EU may not lead to its withdrawal from the ECHR,but human rights protection in the UK will definitely get af-fected since the EU Charter of Fundamental Rights is going to lose jurisdiction in the UK.The EU has made it clear that Britain remaining part of the ECHR is a prerequisite for the EU to forge new trade relations with Britain after the Brexit.Nevertheless,the Conserva-tive government still announced it would not abandon its plan to repeal the HRA and re-place it with an indigenous UK Bill of Rights,which has been put aside by the Brexit ne-gotiation for the time being.As for the content of the UK Bill of Rights,the Conservative government has never offered an inclusive plan,and its policy document released in 2014 only emphasized its determination to reseize the power of giving final judgment about British human rights cases from the hands of the ECtHR.All these have posed stalemates for the future of the HRA and human rights protection in the UK.This dissertation believes that the HRA is not an ideal framework for human rights protection in the UK,and the UK needs to strike a good balance between conforming to international standards of human rights protection and preserving its special constitutional tradition to better embrace globa-lization while maintaining its uniqueness.