Special Feature: From Human Rights to British Rights

As per usual, revision for my law degree examinations has been disrupted by the only thing that has the power to distract me from law… more law. Yes, as many of you will probably have seen brandished across social media as a “look what you have done to us” statement to those who voted Tory, the government has announced it will continue to push for abolishing the Human Rights Act 1998 (HRA).

Many of the articles I have read concerning the issue simply end their analysis after merely either listing the 11 rights laid out in the European Convention of Human Rights (ECHR) and/or stating that this act will be abolished[1]. To do this amounts to irresponsible journalism and when considered, is either a blatant attempt at fearmongering or a colossal lack of knowledge on the part of the reporters. However it’s not just the tabloids who been doing so, but to my dismay, so have charities such as Amnesty international, who generated an emotive, supposedly “informative” campaign support page which inferred (after telling several stories of HRA success stories) that the rights would simply vanish[2].

 

This approach to reporting the issue hinders many things:

  • It hinders the actual, real debate about the new proposed bill, obscuring both its pros and con’s.
  • It hinders the transparency of the charities such as AI, and journalism such as the Guardian.
  • It hinders education about both the importance and issues with the current system of rights in the EU.
  • It promotes the `easy option` of fear as opposed to intelligent and progressive informed decision making.
  • It also hinders our ever diminishing ability to hold the government to their word, since we do not even seem to care what the actual proposals are, so how can we later criticise them if they deviate from it?

 

At this point I would like to make two things blatantly clear. Firstly, I do not support the current proposals. Secondly, this is not, I repeat, this is not going to result in any of the current rights vanishing. So, “what are the proposals then?” I hear you cry! Well to summarise[3]:

 

(i) The European Court of Human Rights in Strasbourg (ECtHR) will no longer have the ability to create binding judgements relating to national courts in England and Wales. This means the UK Supreme Court (UKSC) will not be bound to follow any judgments made there, but can still use the ECtHR as an ‘advisory body’.

(ii) Declarations of Incompatibility, made when national legislation is in clear contradiction of the rights (i.e. the wording can’t be interpreted any differently), will be treated as ‘advisory’ only.

(iii) The courts will not be compelled to stretch the meaning of national laws to make them compatible with rights.

(iv) The invoking of human rights will be limited to “cases that involve criminal law and the liberty of an individual, the right to property and similar serious matters”.

(v) Removal of the obligation that British forces in foreign theatres of war to adhere to the act.

(vi) Add parliamentary clarification to the rights, to limit the scope of judicial disputes arising out of issues of interpretation.

 

So just to be crystal clear: at no point on that list does it say that any of the rights will be removed, and, if anyone is still in doubt here is a quote from the proposal:

“The Convention is an entirely sensible statement of the principles which should underpin any modern democratic nation…. There is nothing wrong with that original document,”[4]

However, despite this things are far from rosy when analysing what the real proposals actually mean. So, let’s take a deeper look at the implications of the proposal as a whole and the proposed effect…

 

Firstly, let’s look at (i). It’s all well and good retaking the power of binding judgments back from the ECtHR. However, this throws into doubt the status of current case law (the decisions of the ECtHR that we currently use to interpret the wording of the rights). Cases such as Dudgeon v UK (protection against orientation discrimination), Sunday Times v UK (freedom of information) and Goodwin v UK (legal recognition of non-cisgender individuals) and many more would all have questionable effect under the new system as it is unclear if these are still binding as they are decisions of the ECtHR. Not to mention the effect on our own case law based on those judgments.

 

This is especially true when (vi) is taken into consideration, since parliamentary clarification will probably mean the ECtHR case law on things like prisoners’ voting rights and deportation of terrorists, such as Abu Hamza, would be overruled. But the jurisprudence behind repealing only some of the case law and not others is questionable.

 

While we’re on (vi) it also makes changing the interpretations harder, which means the once fluid HRA will become more rigid and less able to change with the times (amendments to the bill will have to be passes as if they were new law, whereas a single court decision can change case law).

 

With regards to declarations of incompatibility (ii) I had to laugh a little to myself. The quote from the proposal is as follows:

End the ability of the European Court of Human Rights to force the UK to change the law. Every judgement that UK law is incompatible with the Convention will be treated as advisory

Without meaning to step on the authors toe, but, the ECtHR technically can’t “force” the UK to change any laws. Declarations of incompatibility are just that, mere declarations (HRA 1998 s4 (6)). They impose no positive legal obligation for parliament to act to correct it. In the past almost every declaration has been acted upon, but there is no “force” involved as such (at least no legal one). Thus making this proposal effectively moot.

 

Proposal (iii) is perhaps one of the more sensible ones, under the current law (HRA 1998 s3 (1)) courts must, in so far as possible, interpret existing national law in a manner compatible with the HRA, no matter whether it was enacted yesterday or 100 years ago. This has the potential to produce some rather confusing outcomes that fly in the face of the intentions of parliament (something courts are weary of doing since they are conscious that parliament are elected and they are not). However, such confusion can be remedied by use of a declaration of incompatibility rather than utterly unsuitable uses of semantics (akin to a child forcing a square peg in a round hole).

 

Proposal (iv) is another example of the vagueness of the new proposals. The wording could be construed (not unreasonably) to cover almost any legal situation. And, while many agree it is too easy for people to ‘play the human rights card’, the courts usually turf those cases out during the standing process (when they decide if a claimant has a good enough claim to even bother starting legal proceedings). So this again begs the question, why bother? – The framework is already in place, and is already being put to use: there is no need of new legislation.

 

For a party that prides itself on supporting the military, what the hell are they doing proposing (v)!? While I can only assume this is intended to allow squaddies to better use their ‘war faces’, they are still confined by numerous other conventions restricting and outlining the rules of engagement (such as the Geneva Convention and other internal and international military law directives). Rather, I can only see this proposal actually being used to deny the rights in the new bill to soldiers while on foreign deployment, something which I’m sure the majority of soldiery will not be happy about.

 

All of the above considered, it is hard for anyone to accept that these proposals will do any good to the current system of human rights or for us as a nation on the international scene. So, to clarify why I oppose it and why I think you should also:

  1. The current system is not fundamentally flawed: if it ain’t broke, why fix it?
  2. We risk alienating the other signatories of the convention (remember these proposals do not want us to break from the convention itself) and possibly incur sanctions from other nations. We ain’t too popular in Europe as it is and this is not likely to improve the situation.
  3. While many of us disagree that we should give prisoners the vote, or allow people whose sole stated aim is to destroy us to remain living here, these are small not-insurmountable issues. Repealing the HRA is most definitely overkill in that regard.
  4. While the UKSC is a brilliant institution, it is brilliant because it considers every possible solution to each case, that includes the opinion of the ECtHR, so it is unlikely the ECtHR would lose much of its influence over the UK anyway (that is, if they agree to continue giving us advice in cases despite us not co-operating with them). So I very much doubt this new bill will fix enough of the problems with the current act to justify replacing it.
  5. The stuff about the soldiers; WTF!

 
To conclude: I don’t encourage you to support this proposal; I do encourage you educate yourself about the true nature of things you choose oppose before you make up your mind. Remember, The Guardian isn’t always right and, for the purposes to non-bias, neither is The Daily Mail.

 

Andrew Ward

Law & Defence

[1] http://www.theguardian.com/politics/2015/may/10/conservatives-to-push-forward-on-manifesto-and-scrap-human-rights-act

[2] http://keeptheact.uk/?fb_action_ids=10205123667186006&fb_action_types=og.likes#first-slide

[3] https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf

[4] ibid

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