Why the case against the Human Rights Act is so weak

Don’t turn off the lights. Sam72/www.shutterstock.com

The Human Rights Act was enacted in 1998 and made the rights set down in the European Convention on Human Rights (ECHR) part of UK law for the first time. The ECHR was drafted after World War II and places obligations on its signatories to protect certain rights, such as the right to a fair trial, the right not to be tortured and the right to freedom of expression. The UK was instrumental in its drafting and was the first country to ratify it in 1951.

Now Liz Truss, Britain’s justice secretary and Lord Chancellor, has confirmed that the UK government intends to fulfil the Conservative manifesto promise to replace the Human Rights Act with a UK Bill of Rights. But the case for doing this is unconvincing and unnecessary.

Although Theresa May mooted the idea of withdrawing the UK from the ECHR during the EU referendum campaign, since becoming British prime minister she has stated that after Brexit she does not intend to do so. Given this, it seems pointless to consider replacing the Human Rights Act with a new UK Bill of Rights.

No threat to sovereignty

Before the Human Rights Act was introduced, the UK’s obligations under the ECHR existed only in international law, so that only the European Court of Human Rights in Strasbourg could hear cases concerning breaches of the Convention brought against the UK. The Conservatives argue that “Britain shouldn’t be told what to do by judges in Strasbourg”. Yet the Act enables UK judges to decide ECHR cases rather than judges in Strasbourg having to hear them.

The Act also incorporates the ECHR into UK law while protecting parliamentary sovereignty – the principle that parliament can enact any law whatsoever and that the courts cannot rule an Act of Parliament to be invalid.

Under the Act, parliament remains free to legislate in breach of the ECHR and, as demonstrated by the refusal to alter a ban on the rights of prisoners to vote, may refuse to comply with judgements of the Strasbourg court. So, the suggestion by May that the ECHR and the Human Rights Act “bind(s) the hands of parliament” is incorrect. If an Act of Parliament is incompatible with the ECHR, UK courts may issue a declaration to that effect but this does not affect the legislation’s validity or the outcome of any case. Neither the UK courts, nor Strasbourg, have the power to strike down legislation because it conflicts with the ECHR.

Where the judges sit in Strasbourg. Oleg Mikhaylov/www.shutterstock.com

The government has not yet published a draft of its proposed UK Bill of Rights, though there are reports that it is ready. But, like the Human Rights Act, it would apply only within the UK and would not alter the way in which the Strasbourg court works.

Respecting UK courts

Some Conservatives claim that the Human Rights Act “undermines the role of UK courts in deciding on human rights issues in this country” because it requires them to “take into account” decisions of the Strasbourg court. Yet it is difficult to see why this undermines UK courts. It simply obliges them to consider applying the ECHR in a way which is consistent with the Strasbourg court. It does not require them to slavishly follow Strasbourg but it does mean they can apply the ECHR in a way which respects the UK’s laws and principles and which is unlikely to be ruled a breach of the ECHR by the Strasbourg court. This empowers, rather than undermines, UK courts because they are able to conclusively determine ECHR matters rather than UK citizens having to rely on the Strasbourg court to enforce their rights.

The deportation of the extremist Abu Qatada, and other suspected terrorists, is often cited as a reason for replacing the Human Rights Act. Qatada’s deportation to Jordan was blocked by the UK Court of Appeal, and later by Strasbourg, because he may have been subject to trial using evidence obtained by torture in Jordan. Yet, once the government had obtained sufficient assurances from the Jordanians, he was finally lawfully deported in 2013.

The government’s reaction to the Qatada case suggests that they believe ministers should have the power to deport people at their whim, without judicial oversight and with no regard to what may happen to them in the receiving country – but that would not be the hallmark of a democracy committed to the rule of law.

The former Lord Chief Justice, Lord Bingham, once said: “There are countries in the world where all judicial decisions find favour with the government, but they are not places where one would wish to live.” In any healthy democracy, there will, and should, be decisions which do not go the government’s way. This is not a sufficient reason for altering the protection of human rights.

The Human Rights Act incorporates the ECHR into UK law in a simple, elegant and sensible way while protecting long-standing principles of the UK constitution. It also allows disputes about those rights to be heard by UK courts rather than Strasbourg.

Talk of replacing it seems to be little more than playing to the gallery, a pandering to the Conservative party’s supporters. The result of the Brexit referendum should warn against such posturing and such an unnecessary, regressive step which may weaken the protection afforded to the rights of citizens in the UK.

Found this article useful? A tax-deductible gift of $30/month helps deliver knowledge-based, ethical journalism.