The justice secretary Liz Truss last week told BBC Radio 4 that she would focus on scrapping the Human Rights Act 1998 (HRA) and replace it with a “British Bill of Rights”. 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), signed by the UK in 1951, was a collective response to the atrocities of the Holocaust and the Nazis. The convention aimed to prevent government excesses by providing a basic set of rights for citizens, not based on their nationality, race, gender or religion, but simply on the fact that they were human. The articles of the treaty, known as convention rights, included the right to life, the prohibition of torture and slavery, free speech, the right to protest and practise your religion, the right to a fair trial and many other liberties.
The Human Rights Act 1998 sought to ”bring rights home” by incorporating this international treaty 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 a human rights revolution.
The HRA requires UK judges to interpret, as far as is possible, domestic law in a manner that protects these human rights (and they have gone to admirable lengths to do so). If they are unable to, a judge can issue a declaration of incompatibility, which places political pressure on MPs to change the offending law. The HRA also allows a fast-track option to remedy legislation that is not compliant but, perhaps most importantly – save some exceptions – public bodies are obligated to make decisions or act in a way that is human rights-compatible.
Among the criticisms levelled at the HRA are that it limits the legislative power of Parliament and that decisions of the ECtHR bind our courts. Both of these are simply incorrect.
Many of the convention articles can in fact be (and perhaps too often are) lawfully limited. And although 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).
Decisions of the ECtHR do not bind 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 ECtHR bind our government, not the courts, and so the critics who claim that repealing the HRA would allow us to ignore ECtHR, such as its declaration that the UK’s blanket ban on prisoners voting was unlawful, are mistaken. To do that, we’d have to leave the ECHR and that’s not going to happen, if at all, any time 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”. Speculating, it will potentially do one of two things – either change very little (although at taxpayer expense) or compromise fundamental rights that were afforded to citizens so as to prevent governmental tyranny.
The HRA helps 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 other things. It binds public authorities and our government but not, as the government claims, our courts or Parliament. So what’s the problem? There is no problem – just fiction and misnomer. Repealing the HRA could result in a devastating retreat back to the atrocities that blighted Europe back in the 1930s and 1940s.
Tanzil Chowdhury is a development worker at the Greater Manchester Law Centre (steering group). Find out more about the centre at www.gmlaw.org.uk or @gmlawcentre