The new Justice Secretary Liz Truss, and the third non-lawyer in a row to be appointed for the position, recently gave evidence to the House of Commons Justice Committee pledging her government’s commitment to scrap the Human Rights Act 1998 (HRA) and replace it with a ‘British Bill of Rights’ (BBoR). However, many of the claims that critics of the HRA make fundamentally misunderstand how it works and why it is essential in a democratic society, and evade any serious discussion about what a British Bill of Rights would look like.
The European Convention on Human Rights (ECHR) was put together in response to the European Holocaust and the Third Reich’s expansionist wars and was intended to prevent government excesses. It provided a basic set of rights for citizens, not based on their nationality, race, gender or religion, but simply by virtue of the fact that they were human. The articles of the treaty, known as ‘convention rights’, included the right to life, the prohibition of torture or slavery, free speech, the right to protest or practice your religion, the right to a fair trial and many other essential liberties. Some of the key architects of convention were in fact, like Liz Truss, Conservatives. Former Prime Minister Winston Churchill spearheaded the political momentum behind it across Europe, whilst David Maxwell-Fyfe, a lawyer and Tory MP, helped draft the document.
The Human Rights Act 1998 sought to ‘bring rights home’ by incorporating the European Convention on Human Rights into our domestic legal system. This meant that for the first time in the UK, if people felt that their human rights had been violated, they were able to bring actions before a domestic court rather than the costly route of going to the European Court of Human Rights (ECtHR) in Strasbourg. This was nothing short of a human rights revolution.
The HRA requires UK judges to interpret, as far as is possible, domestic law in a manner that protects these convention rights (and they have gone to admirable lengths to do so). If they are unable to do so, a judge can issue a declaration of incompatibility which places political pressure on MPs to change the offending law. Indeed, the HRA provides an accelerated mechanism to remedy domestic law that is not compliant. However, perhaps the most important impact that the HRA has had is that it imposes strict obligations, save some exceptions, upon all public bodies to act in a way that is compliant with human rights.
There are notable nationalistic undertones that characterise many of the criticisms levelled at the Human Rights Act. It has been called an ‘undemocratic fetter on a sovereign British state and its Parliament’, a law that binds our courts with ‘foreign judgments’ and gives too much freedom to society’s ‘undesirables’. All of these are simply incorrect.
Many of the convention articles can in fact be (and perhaps too often are) lawfully limited subject to certain conditions obtaining – and though public bodies are by default bound by human rights, our Parliament can still create laws that are contrary to the convention articles (though politically it would be unwise to do so).
Further, decisions of the ECtHR do not bind our UK courts. The HRA only requires UK courts to take into consideration the decisions of the ECtHR and thus, the relationship between the two is in fact much more reciprocal. Decisions of the court bind our government, not the courts, and so the critics who claim that repealing the HRA would allow us to ignore ECtHR, such as the decision that declared the UK’s blanket ban on prisoners voting unlawful, are mistaken. To do that, we’d have to leave the European Convention of Human Rights and that’s not going to happen, if at all, anytime soon.
All we know about the proposed ‘British Bill of Rights’ is the immigrant-baiting rhetoric that it will allow the UK to ‘deport foreign terrorists’. But successive Justice Ministers have maintained a line of ambiguity. One of either two things is certain; such a bill will either change very little (though at considerable tax payer expense) or it will compromise the convention rights that were afforded to all citizens as a protection against governmental tyranny.
For all its faults and ignoring the fact that Churchill was no angel, the HRA helps to keep families together, holds the police to account for deaths in custody, allows people to wear religious symbols at work and limits the government’s spying powers among many the things. They bind public authorities and our government, but not, as the government claim, our courts or Parliament. So what’s the problem? The problem is that there is no problem- just fiction and misnomer. Repealing the HRA could instead result in a devastating retreat back to the atrocities that blighted Europe back in the 1930s and 40s.
Liberty are campaigning to Save Our Human Rights Act, more info here
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Tanzil Chowdhury recently completed his PhD in 2016. He works as a development worker for the Greater Manchester Law Centre and lectures at the School of Law, University of Manchester. You can follow him on @tchowdhury88