Human Rights I

‘The Human Rights Act represents a turning point in the development of the rights of the individuals.’

Consider, with appropriate example, the validity of this statement.

The Human Rights Act 1998 incorporated the European Convention on Human Rights into English law. The effect of this is to strengthen the protection of individual rights by UK courts and provided improved remedies where these are violated. This is not new and it has been possible to rely on the Convention since the UK signed the convention back to the 1950s.  All public bodies, such as courts, police, local government, hospitals and publicly funded schools, and also other bodies, carrying out public functions have to comply with the Convention Rights. This means, among other things, those individuals can take human rights into domestic courts; they no longer have to go to Strasbourg to argue their cases in the European Court of Human Rights.

The Human Rights Acts is known as watershed in the development of the individuals’ rights as it sets out the fundamental rights and freedoms that individuals in the UK have to access to. For example,  The Right to Life (Article 2). This means that everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law. In Pretty v United Kingdom, A woman suffering from an incurable degenerative disease wanted to control when and how she died. In order to avoid an undignified death through respiratory failure, she wanted her husband to help her commit suicide and sought an assurance that he would not be prosecuted for his assistance. The European Court of Human Rights found that the right to life does not create an entitlement to choose death rather than life. So, there was no right to die at the hands of a third person or with the assistance of a public authority.

Then, In Article 9: Freedom of thought, conscience and religion, everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance. In R (on the application of Begum) v Denbigh High School, A Muslim schoolgirl was prevented from attending school because she refused to wear the school’s shalwar kameeze uniform, preferring instead to wear a more modest jilbab. She argued that this breached her rights under Article 9 to manifest her religion. The House of Lords found that there was no breach of her right to manifest her religion because she could have attended other schools in her catchment area that permitted students to wear the jilbab. In these circumstances it was inappropriate for the courts to disturb the decision of the school which was better placed to assess this sensitive situation.

While the Human Rights Act represents an important advance for civil liberties in the UK, there are still significant limitations on the impact that the Act will have. In particular, legislation which is incompatible with the Convention is still valid; judges do not have the power to strike down offending statutes as unconstitutional. Thus, the principle of parliamentary sovereignty remains intact. If a higher court does find that legislation is incompatible with the Convention, then it can choose to make a declaration to this effect (Art.4) and a Minister can subsequently amend the offending legislation by a fast-track procedure which avoids the full parliamentary process. An early example of a declaration of incompatibility is provided by the case of Wilson v First Country Trust (2003) where the House of Lords declared that a provision of the Consumer Credit Act 1974 violated the Convention.

In conclusion, the Human Rights Act  is indeed a watershed for the development of the rights of the individuals but there are restrictions on the Human Rights Act in particular the convention has a limited impact as many of the articles are out of date. We have no human rights commission and so its impact is rather piecemeal. The Act did not come into force until Oct 2000 so its impact so far has been limited. Thus, the establishment of Commission for Equity and Human Rights has implemented various functions such as providing advice and guidance to people wishing to assert their rights and conducting inquires; which is to promote both human rights and equality of opportunity.

Alternative Dispute Resolution (ADR)

Describe the various methods of alternative dispute resolution (ADR). Assess whether ADR provides a better way for individuals to resolve a civil dispute than using the court system. (9084/12/M/J/14 Q1)

When both parties are at a civil dispute, normally they will choose to resolve the civil dispute through a court hearing. The civil cases will begin in the Country Court or the High Court. Magistrate Court also has a limited civil jurisdiction. Some of the strengths of using a civil court system are as follows: Legal aid is available for the court proceedings; Adherence to the precedent; There are orderliness, finality and authority of the courts; the judges are better at dealing with the points of law; lastly, there are clear appeal routes. However, not all the cases are suitable to deal through the court system due to some problems: Court proceedings are costly, in terms of time and money. Legal representatives may lengthen the case and increase the costs. The court proceedings are too complex and formal which lead the parties difficult to understand. Moreover, the court proceedings will not lead to a win-win situation for the parties. There will be a winner and a loser. This promotes adversarial nature of the court cases as it is unlikely to make the involved parties to maintain or continue their relationships after the court proceedings have ended.  Thus, there is an alternative to resolve a civil case called Alternative Dispute Resolution (ADR).

ADR is defined in the glossary to the Civil Procedure Rules (CPR) as a “collection description of methods of resolving disputes otherwise than through the normal trial process”. Its aim is to avoid the cost, formality, time consuming, adversarial and intimidating nature of court cases. The main methods of ADR are arbitration, mediation, conciliation and negotiation.

Arbitration is a procedure whereby both sides to a dispute agree to let a third party, arbitrator, to decide. The arbitrator may be a lawyer, or may be an expert in the field of the dispute. He or she will make a decision according to the law and the decision is legally binding. Arbitration is commonly used in commercial contracts between businesses. Where there is an arbitration agreement in a contract, the Arbitration Act 1996 states that the courts will normally refuse to deal with any dispute.

Mediation involves the appointment of a mediator to help the parties to a dispute reach an agreement which mutually acceptable. Mediation can be ‘evaluative’, where the mediator gives an assessment of the legal strength of a case; or can be ‘facilitative’ where the mediator helps the parties to find a settlement that is in all the parties’ best interests. When mediation is successful and an agreement is reached, it is written down and forms a legally binding contract unless the parties state otherwise. Mediation has been applied to trust and probate cases to resolve the conflict within families, to divorce cases, commercial disputes and also arguments between neighbours.

Conciliation is similar to mediation but then conciliator takes a more interventionist role than the mediator in bringing both parties together and in suggesting possible solutions to help achieve an agreed settlement.

Negotiation can be a very quick, confidential and cost-effective way of settling a dispute, particularly for small-scale local matters as between neighbours or between consumers and shopkeepers.

ADR does provide a better way for individuals to resolve a civil dispute than using the court system. ADR promotes flexibility as the date, time and place of hearing are all matters for the parties to decide in consultation with the arbitrator, mediator or conciliator. Thus, parties can choose what is most convenient for all the people control. It is less formal and more flexible that the court proceedings as there are no strict procedures to be followed. It is as formal or as informal as the parties and the arbitrator, mediator and conciliator wish. It also maintains the relationship between the both parties. Conciliation and mediation help avoid the adversarial nature and the win-lose results of court proceedings. This enables parties to maintain their relationship in the future, once the dispute has been resolved.

However, ADR has its own weaknesses which are unlikely to resolve some civil dispute than using the court system. There is no doctrine of precedent, and each case is judged on its merits, providing no real guidelines for future cases. While arbitrators have a duty to apply the law contained in court judgments. The decisions of the arbitrators themselves do not act as precedents. Also, the rights of appeal are limited. In the arbitration process though awards may be enforced through the court, where the parties agree that they will consider the arbitrator’s decision to be binding.

In conclusion, ADR has its strengths in settling civil disputes than using the court system. However, 

it depends on the civil disputes whether which method is suitable and convenient to settle the disputes as the aim of machinery of justice is to promote the fairness and justice in resolving the problems.