Ben Ward: This insidious assault on the Human Rights Act
Would we be better off with a British Bill of Rights? No and no again
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Independent Minds
The Labour government has every reason to be proud of the Human Rights Act. In 1997, Jack Straw, then Home Secretary, described the Act's passage through Parliament as "an historic day" for rights in Britain. Yet, last December, Straw, now Justice Secretary, declared in an interview that he was "frustrated" by the way that the courts had interpreted the Human Rights Act, encouraging a perception that it is "a villain's charter".
Called on by the Parliamentary Human Rights Committee last month to explain his comments, the Justice Secretary claimed that his intention had been to defend the Act, and that he was simply reflecting on criticisms of it made by others.
Nonetheless, rather than engaging in a public campaign to defend the Human Rights Act against these criticisms, the government has responded by proposing a new "British Bill of Rights and Responsibilities." Straw told the Committee that a long-delayed paper setting out the government's ideas will be published by Easter. The Conservative Party has long been calling for the Human Rights Act to be scrapped and replaced with a "homegrown British Bill of Rights." The popular press, playing on public fears about terrorism and crime, has managed to turn the Human Rights Act into an object of scorn and derision.
Could this chorus of disapproval have a point? Wouldn't we be better off with a British Bill of Rights instead? No and No.
Much of the criticism of the Human Rights Act is muddle-headed. The protections it contains reflect long-standing traditions on law in this country – such as the presumption of innocence, the rights to liberty, the right to a fair hearing and, yes, the prohibition of torture.
Let's be clear: a British Bill of Rights and Responsibilities would not and could not allow foreign drug traffickers or terrorism suspects to be sent home if it meant they would be tortured.
Sending people to another country to face torture was against the rules before the Act, and would still be against the rules if the Act was abolished. Getting rid of the Human Rights Act wouldn't change the UK's obligation to respect the European Convention on Human Rights. And even if a future government took the unthinkable step of withdrawing from that treaty, which would mean leaving the Council of Europe and almost certainly the EU, Britain would be still be bound by a series of UN treaties that prohibit returns to torture.
There is a further problem. Scrapping the Human Rights Act would send a terrible signal around the world that rights can be set aside when they prove too inconvenient or unpopular. Countries in the Commonwealth and beyond look to Britain to do the right thing. And they seize on British abuses under the law to justify their own abusive practices. An announcement that the UK is rolling back rights protection would be grist to the mill for abusive governments everywhere.
But what would be wrong with a new Bill of Rights and Responsibilities which included all the rights contained in the Act, and added responsibilities?
First, we need to clarify what we are talking about. If the Tories have in mind something like the US Bill of Rights, they need to do their homework. In the US, there is a Supreme Court that can strike down legislation that violates rights. In the UK, however, only Parliament has that power.
Given the frequent criticism of "unelected judges," it is hard to imagine a British Government of any stripe doing the same.
As for responsibilities, people living in the UK already have them. They are set out in the criminal law and a plethora of laws creating civil obligations. And human rights law already allows the state to restrict rights in the public interest, including the liberty of those who commit crimes. What is pernicious is the notion the government can decide that those who don't live up to their responsibilities don't deserve rights.
Rather than wasting time seeking elusive agreement on what should be in a new Bill of Rights, how it would work, and whether it would require broader constitutional reform, the Government would be better off working to ensure that authorities understand how properly to apply the Act, that the public understand the practical benefits that it has delivered, and know how to use it against excessive state power. In short, the Government needs to deliver on its promise to bring rights home.
The writer is Associate Director of the Europe and Central Asia division of Human Rights Watch
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Comments
If that were the case then there would presumably be no need for the Human Rights Act.
The author fails to address the serious criticism of this kind of legislation, namely that it can prevent pragmatic, common-sense decision making to deal with specific cases. In practice, the Human Rights Act overrides all other considerations. What the critics want is for human rights to be just one of a number of important considerations that inform decision-making processes. It needs to be balanced, in the context of a particular decision, against other consideraitons such as, say, security.
I, personally, am neutral about the desirability of the Human Rights Act in its present form. I am merely stating the ciriticisms of the Act that the author ought to have addressed.
You then go on to say balanced but you clearly don't know anything about law as it already is balanced (if you had read the article more carefully you would have seen that). Several rights are limited in order to protect other rights and security (e.g. freedom of expression and right to privacy) Maybe you could give us an example of the lack of "common-sense decision making" ?? Perhaps you are referring to the chahal principle (recentl confirmed in saadi v italy) which prevents persons from being deported to countries where they are likely to be tortured? Well repealing the HRA would have no effect as i would still be in breach of the ECHR and Britain would lose any case in the European Court of Human Rights.
We saw a glimpse of their cultural values nine years earlier
http://news.bbc.co.uk/onthisday/hi/date
The result is "human rights " for violent criminals, racketeers, and illegal immigrants - only!
Having said that, an Act on the statute book which prohibits torture and guarantees a right to a trial is very impotant when such an authoritarian party as New Labour are in power. New Labour have been working tirelessly to circumvent civil liberties in the UK of late, and repeal of the Act would be a notable triumph for the Politburo of Brown, Smith, Straw et. al..
The current New Labour quango (a Thatcherite/Mosleyite coalition (remember Blair's Brown Shirts at the Party Conference?), no connection whatsoever with the former respectable Labour Party) will no doubt use this to curtail civil rights even further with their Orwellian dream society (ID cards, frequent Police stops, national DNA database, more restrictive laws that do not reduce crime).
Meanwhile, those who think that Cameron will be an improvement are in for a big shock. Cameron subscribes to failed US economics, and will still promote the free market even though it has failed us miserably. Since Heath, we have not had any statesmen that care about Britain, they are all there for their own agenda (mainly dictated by McKinseyites).
The British people need to open their eyes to see how much fairer the European courts are, and stop believing the propaganda expounded by the right wing press in Britain.
It depends on your politics. If you add include both HRA decisions in the UK and European Court rulings, I can think of many. The decision that said Ernest Saunders didn't have a fair trial - apparently the privileges of limited liability don't extend to answering questions on how you used that privilege. Overruling the limitations on cross-examining rape complainants. Prisoner voting. Restrictions on corporal voting. The Bulger killers as victims of human rights abuses, when nothing in the trial made it unfair from the point of view of finding guilt. Interference in resource allocation in the NHS. Making our restrictions on political advertising somewhat precarious. Treating DNA codes as if they are more important than capturing murderers and rapists.
Now, you might disagree with any or all of this - probably more disagree. Your common-sense might say the court was quite right. I dare say there would be a good majority against the judges on most of the cases I have mentioned, and a substantial amount of disagreement on all of them. But that is the point. They are all subject for disagreement, not subject to judges laying down the "law" as to what is fundamentally right or wrong.
As for Parliament having the right to overrule the judges... that isn't how it works in practice. There is no point in stressing Parliament's right to have the last word, and then scream and yell when anyone suggests using that right to change the HRA.