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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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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