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Human Rights Law (Essay Sample)
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HUMAN RIGHTS LAW
Human Rights Law
The current government believes that there is threat risk posed by the individuals who traveled to Syria to fight the Islamic State. Due to this believe Home Secretary has proposed a bill that states that measures should be put in place to handle the situation before an attack is experienced by the country. In a bid to handle the situation, the bill recommended by the Home Secretary has proposed that individuals who are suspected to be a terrorist should be detained immediately or be put under 18hr home curfew. The proposed bill intends to amend the Prevention and Investigation Act of 2001. The basis for identifying a terrorist is by identifying people who are considering traveling to Syria. The bill is yet to undergo through debate in parliament.
In a bid to identify whether the bill could be approved by parliament this paper seeks to go through the Human Rights Act 1998, European Convention Act and Legislation Act since 2001. Additionally, this paper will cover the case of A and others vs. Secretary of States of 2004 to identify whether the case can help identify the relevance of the proposed bill by the Home Secretary. The paper has one main goal which is to identify whether the proposed bill will comply with the Human Rights Act of 1998.[Jean-FranÃ§ois Flauss, "Human Rights Act" (2001) 48 Revue franÃ§aise de droit constitutionnel.]
Human Rights Act of 1998
Human Rights Act of 1998 came into enforcement in 2000. The Human Rights Act of 1998 is also known as the HRA or the Act. This act was enacted and enforced in the United Kingdom. The Act contains sections that aim to codify the protections proposed in the European Convention On Human Rights. The act stated that all public bodies carrying public functions ought to adhere to the proposals of the convention. Regarding the aim of this paper, our main concern will be articles that are in line with the main theme of the paper which is the bill proposed by the Home Secretary.[A. Mowbray, "Subsidiarity And The European Convention On Human Rights" (2015) 15 Human Rights Law Review.]
The first article to be discussed in this paper under the Act of 1998 is the right to a free trial. The act states that in the process of determination of oneâ€™s civil obligations and rights or criminal charges leveled against the person, one is entitled to a fair hearing which should be public in nature. The Act also states that an impartial and independent personnel who does not have a direct interest in the charges against the accused. The act states that the judgment should be announced in public however the public and press may be excluded from the hearing for various reasons. The act also states that a person who has charges leveled against him should be considered innocent until proven guilty. The act was proposed and approved so as to facilitate the formation of the European Convention on Human Rights, thus in this section we are going to look at the Convention Articles as they were formed on the basis of Human Rights Act of 1998.[Richard Horton, "Health And The UK Human Rights Act 1998" (2000) 356 The Lancet.]
The Act provides for minimum rights of an accused person facing criminal charges. The first right is the right to be adequately informed regarding the nature of the charges leveled against him. The second right is the right to be provided with ample time to prepare for the defense. The third right is the right to defend himself or herself either personally or through a representative. The fourth right is to access the help of an interpreter during court proceedings if the accused cannot understand the language.
In this bill, however, the Home Secretary does not provide for the measures and proposals proposed in the Act of 1998 such as the secretary does not cater for the provision of a fair trial. The reason behind the assertion is due to the Secretary recommends that a person suspected to be a terrorist either through the intent of traveling to Syria should either be put under house arrest or be arrested indefinite meaning without proper explanation of the nature of the charges. Thus, in my capacity of thinking the proposed bill does not adhere to the Act of 1998.
The second article is Article 5 that states that individuals right to liberty ought to be respected. The article provides for clauses that should be used when arresting a person. The act states that a person detained or arrested lawfully should be brought at the right time to the judge or other legal officers to allow for the exercise of judicial power. The act states that such a person should be put forward for a trial at a reasonable time or released so as to wait for trials. The proposed bill does not provide for such clauses as it proposes the indefinite arrest or home curfew which tampers with one's liberty.[Richard Horton, "Health And The UK Human Rights Act 1998" (2000) 356 The Lancet.]
This assertion is due to the act does not provide for the legal trial of a suspected criminal. The act also states that a person who has been a victim of unlawful detention or arrest should be liable to compensation. This proposal thus could increase the expenses incurred by the state through the compensation to the victims of unlawful detention or arrest. Thus, this proposal is not compatible and does not adhere to the proposals of the Act on Human Rights of 1998.
A and Others vs. Secretary of States
A and Others vs. Secretary of States is commonly known as the Belmarsh 9 case. This case occurred and was heard in 2004. The House of the Lords was responsible for the hearing of the case. The case held that the indefinite detention of prisoners who are foreign in the UK without proper trial was incompatible with the European Convention on Human Rights.
Facts of the Case
The case kicked off with the challenging the decision made by Special Immigration Appeals Commission to eject nine men from the country on the basis that they posed a risk to national security. The nine men were responsible for challenging the decision. Seven of the appellants were detained in December 2001 while the rest were detained in February and April 2002 respectively. The nine appellants were detained under Act of 2001 of the Anti- Terrorism, Crime, and Security. In Part 4 of the Act provided for indefinite detention without trial as well as deportation of the nine men and only applied to non-British. However, the act provided for the appeal of the decision against the detention through the Special Immigration Appeals Commission.[swarb.co.uk, "A And Others -V- Secretary Of State For The Home Department (No 2); HL 8 Dec 2005" (2015) accessed 27 January 2016.]
The House of the Lords held that although the detention of the appellant was lawful according to ATCSA 2001 section 23, the act was incompatible with the European Convention on Human Rights articles. The decision was made by Lord Nicholls representing Birkenhead, Lord Rodger representing Earlsferry, Lord Bingham representing Cornhill, Lord Baroness representing Richmond, Lord Scott representing Foscote and Lord Carswell. The effect of the decision made by the House of Lords led to the declaration that Section 4 of the Human Rights Act of 1998 was incompatible with the European Convention on Human Rights, and thus the appeals by the nine men were validated.[swarb.co.uk, "A And Others -V- Secretary Of State For The Home Department (No 2); HL 8 Dec 2005" (2015) accessed 27 January 2016.]
However, Lord Hoffman was strongly against the decision made by the House of Lords regarding the case but at long last accepted the allowance of the appeals be made. The majority of the Lords in making the decision were in the view that the Act is not compatible with Article 14 of the ECHR as it led to discrimination between the foreigners and the nationals. However, Hoffman stated that this scheme was not compatible with the constitution of the Un...
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