Scrapping the human rights act doesn't mean scrapping human rights

As the Justice Secretary announced her intention to push ahead with plans to scrap the Human Rights Act and replace it with a British Bill of Rights, social media was again whipped up into a frenzy of fear. The Human Rights Act was trending on Twitter with thousands of people claiming that scrapping the Human Rights Act would result in a curtailment of our civil liberties.

Such a claim is ludicrous for a number of reasons. For example, it ignores the fact that the English common law has developed over the centuries and has its foundation on the respect for life, liberty, and freedom. Such concepts are the golden thread which runs through English law and ensures and protects our basic human rights. Moreover, although the UK constitutional system recognises Parliamentary Supremacy, the remarks of former members of the judiciary- who speak more candidly once they retire- suggests that the law courts would be unwilling to enforce laws which run contrary to the respect for life, liberty, and freedom.

For example, former members of the Appellate Committee of the House of Lords have remarked that if Parliament enacted a law criminalising the marriage of white people to black people, or Christians to members of other religions, then they could not apply it. On a similar note, many former judges expressed the same view in regard to laws requiring members of the public to carry ID cards at all times. As a result, the judiciary has acted and will continue to act as a guardian of our rights and will protect those in this country from the more draconian measures of the State.

Furthermore, it would appear that successive governments have been more than willing to depart from the principles of the Human Rights Act and to curtail our civil liberties, all in the name of national security. For example, the Labour Government under Tony Blair had intended for the Terrorism Act 2006 to enable the police to detain suspected terrorists for up to 90 days without charge. Thankfully, such a move was opposed by Parliament who rightly argued that it was an unjustifiable retreat from habeas corpus. Therefore, we see that it was Parliament- actuated by the desire to follow a fundamental tenet of the English common law that thwarted the Government’s attempt to enact oppressive legislation. 

Not only has the Human Rights Act often been superfluous, it is also a poor guarantor of our freedom and liberty. This is down to two main reasons. First, it has no real teeth as although the Act requires that Parliament enact legislation which is compatible with the European Convention on Human Rights, if a court finds that a law is incompatible, the only power that the judiciary has is to declare that the legislation is incompatible- this has no legal effect and so the offending legislation will only be changed if Parliament chooses to do so. Its second weakness is that it is still simply an Act of Parliament. As a result- and as the Justice Secretary’s plans demonstrate- if the Government doesn’t like certain aspects of it then it will be repealed.

In addition, the Human Rights Act has actually diminished certain fundamental rights in the UK- which has not necessarily been the case when other countries have incorporated the European Convention on Human Rights into their own jurisdictions. This is because in the majority of European countries, if a human rights case is brought before a court, reference must be paid to the Bill of Rights enshrined in their constitution rather than the European Convention on Human Rights or any other international treaty.

This was not the case in the UK with the Human Rights Act. The UK, which does not have a constitution codified in a single document, incorporated the European Convention on Human Rights into UK law and instructed British judges to simply follow the precedents of the European Court of Human Rights in Strasbourg. The Court in Strasbourg has often favoured certain Articles of the Convention at the expense of others, and has stretched their meanings so that they no longer reflect their original definition.

This is particularly true with Article 8 which is supposed to protect the right to a private and family life. However, as Lord Sumption rightly pointed out

“This perfectly straightforward provision was originally devised as a protection against the surveillance state by totalitarian governments. But in the hands of the Strasbourg court it has been extended to cover the legal status of illegitimate children, immigration and deportation, extradition, aspects of criminal sentencing, abortion, homosexuality, assisted suicide, child abduction, the law of landlord and tenant, and a great deal else besides. None of these extensions are warranted by the express language of the Convention.”

As a result, Article 8 has often been used not to protect the fundamental right to a private and family life, but rather to undermine freedom of speech, conscience, and expression.
Therefore, scrapping the Human Rights Act and replacing it with a British Bill of Rights could actually strengthen the protection of fundamental human rights in this country. It will be challenging to get right, but, broadly speaking, a British Bill of Rights would have to ensure that the protection of individual freedom and liberty is at its core. It should also confer real power to the judiciary to enable them to strike down any legislation that is contrary to the Bill of Rights. Furthermore, it should also have special status so that it cannot simply be repealed or changed on the whim of Parliament. 

As a result, far from diminishing our human rights, replacing the Human Rights Act with a Bill of Rights would actually strengthen their protection.