The essay considers the declaration of incompatibility as a major limitation of the Human Rights Act using the Belmarsh detention case. Despite this limitation, I argue that based on the overall case law and reports on the Human Rights Act, it is overwhelming apparent that the Act goes far enough to provide individuals in the UK with protection of their rights.
As the first legislation attempting to protect human rights at home, it is important to explore its success in the last decade. Secretary of State for the Home Department to demonstrate the caveat of declarations of incompatibility.
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This case has particularly posed a challenge to the effectiveness of the HRA in upholding rights as fundamental. Not only did the HRA allow UK courts to consider relevant jurisprudence in Strasbourg s2 , but the Act also imposed obligations on public authorities to uphold Convention Rights s6.
The HRA is thus a domestic check of rights that links into the global human rights movement.
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Gearty argues that the language of civil liberties is more vulnerable than the language of human rights due to no requirement to be compatible , pp. Yet one of the limitations of the HRA can be clearly demonstrated particularly through the case of A and others v. Secretary of State for the Home Department While it held that indefinite detention of foreign prisoners in Belmarsh without trial was incompatible with Article 5 1 of ECHR because it was discriminatory on the grounds of nationality, this decision was only a declaration of incompatibility s4.
With just the ability to put political pressure on producing legislation compatible with human rights law, the judgement had no legal effect as the HRA s4 6a does not grant courts the power to invalidate Acts of Parliament. This suggests that the courts only have an interpretative obligation allowing Parliament to remain supreme.
The case at hand seemingly supports this perspective that rights can still be restricted, bringing into question of whether the HRA is committed to the idea of human rights as absolute.
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Although Parliament is free to ignore Declarations of Incompatibility, Klug observes that Parliament has responded to all 18 Declarations of Incompatibility that have been made and not been overturned on appeal. For example, in Bellinger v. Bellinger , the courts declared that not recognising gender change of post-operative transsexuals in marriage law is incompatible with Articles 8 and 12 of ECHR.
This resulted in Parliament in passing the Gender Recognition Act The result was a change in the Human Fertilisation and Embryology Act , which may have impacted approximately 50 families Dyer, In this sense, there is sufficient scope for the HRA to safeguard rights of individuals as fundamental and absolute. On a similar note, Mathews et al. While Gearty suggests the possibility of a social and economic bill of rights similar to the HRA in the future, it seems there may not be a need given that the reach of the HRA is extensive.
The HRA has no doubt been challenged by cases such as those involving terrorist suspects as discussed in this essay. The power of courts to issue a declaration of incompatibility merely appears to be of a political nature.
However, this has not been abused by the government by ignoring such declarations. Although the legal changes enacted as a result of the Belmarsh case had little effect in guaranteeing civil rights, other case law surrounding the HRA shows that Parliament has responded effectively to make legislation compatible with the rights in the ECHR.
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Disclaimer: This work is intended for educational use only, it does not constitute legal advice and should not be relied upon to advise clients on legal matters. If you would like to view other samples of the academic work produced by our writers, please click here. The Human Rights Act was one of the first pieces of legislation to be enacted by the new government.
It is an important constitutional instrument which aims to incorporate key sections of the European Convention on Human Rights into British law. It codifies important human rights and civil liberties, including the right to life Article 2 , and freedom of expression Article British lawyers were said to have played an instrumental role in its design.
Although Britain was one of the first States to sign and ratify the Convention, asserting the rights that it guaranteed was not always a straightforward process for individual citizens. Section 3 of the Act bestows an assumption that all primary legislation can be read in a manner that is compatible with Convention rights, even if the primary legislation in question was enacted prior to the date on which the Human Rights Act received Royal Assent.
This decision was an early demonstration of how the Human Rights Act permeates all corners of the legal system.
For example, R v Secretary of State, Ex Parte Daly  highlights how the principle of proportionality, originally a European doctrine, is increasingly becoming a normal part of UK jurisprudence. Mosley v News Group Newspapers  heralded the development of a common law right to privacy by virtue of Article 8 enshrining a right to privacy attracting greater weight than Article 10 freedom of expression , despite the fact that Parliament has not explicitly legislated in this regard.
As these examples demonstrate, the Act has unquestionably been successful at achieving its aim, and has incorporated Convention rights into domestic law.
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However, it is not without its critics or controversies. Decisions such as S and Others v Secretary of State for the Home Department,  where a group of Afghan men hijacked a plane, flew it to the UK and claimed political asylum but were unable to be removed as doing so would breach their rights under the Convention attracted near universal condemnation from all sides of the political spectrum.
Despite newspaper rhetoric, there have only been twenty declarations of incompatibility that have become final.