tutor2u | Whither the Human Rights Act?

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Whither the Human Rights Act?

Mike McCartney

15th December 2021

Dominic Raab, as Justice Secretary, has unveiled new and controversial plans

According to the Guardian:

"It may bear the unassuming title of a “consultation paper”. But critics believe that the document released by Dominic Raab’s department on Tuesday is the culmination of a steady 12-year campaign by the justice secretary to rip up the Human Rights Act.

Footage of Raab from 2009 shows the then backbench MP looking into the camera and saying: “I don’t support the Human Rights Act and I don’t believe in economic and social rights.”

A few months after the footage was recorded, he released a book entitled The Assault on Liberty: What Went Wrong With Rights in which he argued that the law had opened the door to a slew of new court claims."

First off, what is the Human Rights Act? A study note from tutor2u:

The 1998 Human Rights Act (HRA) is an Act of Parliament that aimed to incorporate into UK law the rights contained in the European Convention on Human Rights (ECHR). It received Royal Assent in November 1998, and mostly came into force in October 2000. The Act creates a remedy for a breach of the ECHR available in the UK courts, without the need to go to the European Court of Human Rights in Strasbourg.

The most important purpose of the Act is that it makes it unlawful for any public body to act in a way incompatible with the ECHR, unless the wording of any other primary legislation provides no other choice. The judiciary needs to take account of any decisions, judgments or opinions of the European Court of Human Rights and to interpret legislation in a way compatible with Convention rights.

Should it not be possible to interpret an Act of Parliament to make it compatible with the Convention, the judges cannot override it. Instead, they can issue a declaration of incompatibility.

The HRA seeks to maintain the principle of Parliamentary Sovereignty, in that a declaration of incompatibility does not affect the validity of the Act of Parliament. Judges may, however, strike down secondary legislation. Furthermore, the Act gives individuals the right to sue in the Strasbourg Court.

Source: Human Rights Act (HRA) | tutor2u

For a long time there has been a debate about whether the HRA goes far enough, and if the UK needs a "full blown" bill of rights with an extra layer of constitutional protection. The arguments go something like this:

The following can be regarded as arguments for a UK Bill of Rights either to replace the Human Rights Act.

  • A Bill of Rights would be a unifying force and help create a common bond. They would build on the HRA, giving further effect to principles as old as the Magna Carta, and thereby punctuating British values at a time when social mobility and diversity is increasing.
  • A Bill of Rights would give explicit recognition of the link between rights and responsibilities, thus putting them in their proper context. This would give individuals a clearer idea of what to expect from public authorities and from each other. Education would be enhanced and greater citizenship would be promoted.
  • A Bill of Rights would protect the individual against the powerful, addressing the needs of the poorest and most marginalised such as older people in healthcare, asylum seekers, adults with learning disabilities, and children in secure training centres.
  • A Bill of Rights could include recognition of the importance of economic and social rights which are not covered by the HRA, e.g. the right to health and education, the right of access to court, the right to jury trial. On the latter it could also include more detailed articulation of this abstract principle.
  • A Bill of Rights could restore the checks and balances that have been eroded by a steady stream of anti-terrorism legislation. The HRA has not been an effective bulwark against this. Since its inception it has not prevented restrictions on the right to assembly near Parliament, the ban on incitement to religious hatred, extension of detention without trial, increased use of stop and search, the use of kettling and so on.
  • In this way, a Bill of Rights would be “HRA plus”. The HRA and the rights in the European Convention on Human Rights (ECHR) must be the minimum safety net below which rights protection should not fall. Besides it would be impossible not to adhere to the ECHR since it is a condition of EU membership and Britain would still be bound by international law.
  • A Bill of Rights would perform a symbolic or iconic role by suggesting that the state was serious about rights, and reflecting changes in society since the ECHR was drafted over 50 years ago. Thus it could include reference to the right not to be discriminated against on grounds of sexuality. This would reinvigorate democracy by empowering individuals and communities.

The following can be regarded as arguments against a UK Bill of Rights

  • A Bill of Rights is only worth pursuing if it builds on the rights the HRA provides. It should not be a cynical attempt by politicians to remedy perceived failings of the HRA, e.g. that the HRA’s existence has prevented officials from deporting suspected terrorists since it would have infringed their human rights.
  • A debate about a Bill of Rights could weaken the protection of existing civil liberties, especially if it afforded less protection than the ECHR/HRA, or if there were differences between a Bill of Rights and international human rights standards. There is a suggestion that the real motivation behind new proposals is to dilute the protections for human rights already contained in the HRA.
  • On a related note, it is worth pointing out that the right-wing press have picked up on the British Bill of Rights campaign only recently. These attacks cannot be divorced from accusations that “foreigners” are interfering in matters of British justice – there is more than a tinge of euro-scepticism (which should be unconnected to a rights debate) here.
  • The unnecessary argument: it is disingenuous to talk of a British Bill of Rights since we already have one in all but name in the shape of the ECHR.
  • What Mao Tse-tung might have called the “it’s too early to tell” argument: the HRA has only been in effect since 2000. It is better to wait for it to “bed down” and be understood by the public. Moreover, we don’t know how the new Supreme Court might begin to interpret the Act once it is fully settle into its new home at Middlesex Guildhall.
  • Many Bills of Rights weaken rights protection by adopting aspirational tones or including aspirational language. Statements about the way society should be or the values you want as a society are not justiciable.
  • In addition we can incorporate into our argument many of the negatives of potential codification of our constitution: the lack of inter-party consensus; low levels of public interest and the concomitant danger of low turnout in a referendum; fossilisation (e.g. the US 2nd Amendment).

Instead, the argument from the likes of Dominic Raab is that the Human Rights Act affords too much protection to certain groups. It is in some way a "complainer's charter". These arguments have been around for a number of years and gained political traction in the run up to the 2015 general Election. See this BBC report here, for example:

"It has been blamed by its critics for allowing prisoners to vote, stopping Britain from deporting terror suspects and hindering UK soldiers in Afghanistan.

Now the Conservative party has announced plans to scrap the Human Rights Act if it wins the next general election.

Prime Minister David Cameron wants to replace the legislation - which allows European rulings to overrule UK courts - with a British Bill of Rights.

Here's a reminder of some of the reasons the Tories and other critics want to scrap the act.

Abu Qatada

When the UK wanted to deport the radical Islamist cleric Abu Qatada to Jordan to face trial on terrorism charges, the European Court of Human Rights blocked the move.

Judges feared that evidence obtained by torture would be used against him.

Ministers in the UK fought a long and expensive legal battle until the cleric finally agreed to drop his case.

He was eventually flown to Jordan in July 2013 and has now been cleared of terror charges."

Source: Human Rights Act: Cases for and against - BBC News

Read some arguments in defence of the HRA here, from Amnesty International: Eight reasons why the Human Rights Act makes the UK a better place | Amnesty International UK

Resistance to Raab's plans have not come solely from the liberal/lest wing usual suspects. As the Guardian reports:

"Tuesday’s plans have attracted criticisms from unusual sources, who may yet force some changes.

MI5, MI6 and GHCQ have told ministers that changes to the Human Rights Act could make it harder for them to defend cases in courts. In evidence to the independent Human Rights Act review committee, which could recommend changes, the security services said it would be unhelpful if the government went too far.

They warned that unless the government was careful, terrorist suspects could take their cases directly to the European court of human rights in Strasbourg, where such evidence could not be submitted in secret.

Buckland and other senior Conservatives, including several government officials, are expected to resist changes and could well gain support in the House of Lords.

Tuesday’s plans have attracted criticisms from unusual sources, who may yet force some changes.

MI5, MI6 and GHCQ have told ministers that changes to the Human Rights Act could make it harder for them to defend cases in courts. In evidence to the independent Human Rights Act review committee, which could recommend changes, the security services said it would be unhelpful if the government went too far.

They warned that unless the government was careful, terrorist suspects could take their cases directly to the European court of human rights in Strasbourg, where such evidence could not be submitted in secret.

Buckland and other senior Conservatives, including several government officials, are expected to resist changes and could well gain support in the House of Lords."

Dominic Raab’s paper seen as fulfilment of quest to destroy Human Rights Act | Dominic Raab | The Guardian

Activities

Explain what the Human Rights Act is

Research some examples of cases tried in the Uk under the Human Rights Act

Use this weblink as a starting point: 50 Human Rights Cases That Transformed Britain | EachOther

Discuss whether you think the Human Rights Act effectively defends civil rights and liberties, and whether it should be overhauled


Mike McCartney

Mike is an experienced A-Level Politics teacher, author and examiner.

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