Out of the many proposals to emerge from the Conservative Party’s recent electoral win, perhaps none is so divisive or far-reaching in consequence as David Cameron’s pledge to abolish the Human Rights Act (HRA). Cameron is due to outline his plans in tomorrow’s Queen’s speech.
Though the desire is not new, this is the first time that the Conservatives, as a majority government, have the power to scrap the HRA without having to defer to coalition partners.
Often caricatured a ‘charter for villains’, the Human Rights Act is perhaps the most vociferously debated, yet frequently misunderstood, areas of law in the UK. Stories of terrorists, axe-murderers, neighbours from hell, prisoners and illegal immigrants all using human rights for their own ends, are commonplace in the media.
- You can read an interview with Conor Gearty, professor of human rights law at LSE here; and watch Director of Liberty, Shami Chakrabarti here
Indeed, newly appointed Justice Minister, Michael Gove, charged with the task of abolishing the HRA said that the human rights ‘culture’ ‘supplants common sense and common law, and erodes individual dignity by encouraging citizens to see themselves as supplicants and victims to be pensioned by the state’.
So are human rights simply a form of pension for weak-willed and recalcitrant supplicants of the United Kingdom and their lawyers nothing more than self-interested peddlers of that system?
Human rights emerged as a direct response to the Second World War and as a result of the vivid realisation that even ‘civilised’ states could, under the certain social and economic pressures, turn to a policy of ethnic and social cleansing. Nations had witnessed firsthand that what begins as casual prejudice towards ‘undesirable’ sectors of society, can develop into full-scale genocide. The mood was, ‘never again’.
With this in mind, Britain along with other victorious allies of WW2, played a key role in drafting the European Convention of Human Rights (not to be confused with the European Union), which the HRA codifies into domestic law.
The ECHR sets out basic minimum standards of treatment for all human beings, regardless of their race, religion, political views, and indeed criminality. In this way, human rights are designed to protect the most vulnerable, but also the most unpopular individuals, from the combination of state power and populist views that had caused such devastation.
Engaging in some ‘myth-busting’ about the Human Rights Act, former Director of Public Prosecutions and new Labour MP, Keir Starmer points out in the Guardian that far from benefiting only criminals and terrorists, the HRA in fact ‘heralded a new approach to the protection of the most vulnerable in our society, including child victims of trafficking, women subject to domestic and sexual violence, those with disabilities and victims of crime. After many years of struggling to be heard, these individuals now have not only a voice, but a right to be protected’.
Similarly, Sonya Sceats, director of policy and advocacy at Freedom from Torture, in Huffington Post said the Conservative plans were ‘not the answer’ to debates surrounding the HRA. ‘It is essential instead to show the public how the Act is positively changing lives for patients, care home residents, domestic violence victims, children and other disadvantaged members of our communities,’ said Sceats.
However, Cameron maintains that a British Bill of Rights would ‘stop terrorists and other serious foreign criminals who pose a threat to our society from using spurious human rights arguments to prevent deportation.’ This sentiment appears to be a common crux of most arguments in favour of abolishing the HRA.
But as barrister Matthew Scott, writing for the Telegraph, poses: ‘what is a ‘spurious human rights argument?’
The now notorious Abu Qatada, an Islamic extremist who has since left the UK, argued that he should not be deported to face trial because he would be tortured and later, that his trial would rely on evidence obtained from torture in Jordan. Freedom from torture one of few ‘absolute’ rights under the ECHR, meaning it cannot be violated under any circumstance. As Scott argues, ‘presumably Qatada would be able to make the same argument, and quite possibly succeed under a British Bill of Rights.’ Or is the state advocating for a situation where a bit of torture is ok?
The most controversial cases emerging from the European Court of Human Rights range from prisoner voting, a prospect which Cameron said made him feel ‘physically sick’ to the infamous claim by Theresa May, since retracted, that a criminal could not be deported because he had a cat. See www.rightsinfo.org for their 14 worst human rights myths (here).
Regardless of where people stand on the debate, abolishing the HRA and replacing it with a British Bill of Rights has been described (by Matthew Scott) as a ‘Gordian knot’ of a legal problem for all concerned. Indeed, Cameron himself has allegedly ‘cooled off’ his initial fervour on the grounds that ‘the more he looked into it, the more complicated the question became.’
Massive uncertainties remain as to what a British Bill of Rights practically would look like, despite a seven year consultation into the matter; it is unclear which of the many fundamental rights enshrined in the HRA, such as the right to life, freedom from torture, freedom from slavery, the right to a fair trial, freedom from discrimination, would be excluded or amended. As Scott commented, ‘If he is not careful Mr Gove will end up with a Bill of Rights that looks almost identical to the European Convention’.
Margin of appreciation
Amid claims that ‘English MPs don’t have the final say over English laws’, a number of inconsistencies have emerged that cast doubt on such arguments. Firstly, the HRA and ECHR already offer the domestic courts wide discretion in interpreting rights according to the needs and particularly circumstances of each country; this concept is called the ‘margin of appreciation’.
Similarly, most human rights are not absolute but limited; there are express provisions contained in the HRA and ECHR allowing rights like Article 8, the right to private and family life, to be interfered with if countervailing interests like national security or the prevention of crime, warrant it. Even if the state is found to be in violation of a right, the courts can only issue a Declaration of Incompatibility saying the law is not compatible with the ECH; this has no direct legal consequence in our country, the matter is referred to Parliament who then decides whether to change the law, albeit fines may be issued for non-compliance.
Similarly, Cameron’s claim that abolishing the Act would break the ‘formal link’ between British courts and the European Court of Human Rights, and make our own Supreme Court ‘the ultimate arbiter of human rights matters in the UK’ has been disputed.
Keir Starmer chastised the ‘shallow argument that our courts are shackled because they are bound to follow decisions of the European Court of Human Rights’, pointing out that the HRA ‘only obliges our courts to “take into account” judgments of the European court; they are not formally bound by them’. Even Lord Howard, advocating for a British Bill, concedes ‘our courts have felt constrained to follow the decisions of Strasbourg when Section 2 of the Act does not require them to do so.’ It would appear that the real issue the government has is with the judgment calls of our courts, not the HRA itself.
In light of these uncertainties, barrister, Adam Wagner (the barrister behind a new site called www.rightsinfo.org) comments that the Conservative plan for a Bill of Rights, ‘as vague as it is, is not about building the large tent you would need to construct a modern, inclusive bill of rights. It is about protecting the narrow interests of party supporters.’
‘You only need to read the press release, since buried, which came with the original proposal. It talks about taking rights away from travellers, victims of abuse by the British military, illegal immigrants. Human rights are universal, they apply to everyone. The whole point is that minorities and unpopular groups are shielded from the random attacks of populism.’
Concerns about ulterior motives of the government’s intention to abolish the HRA have been heightened given the backdrop of increased ‘security’ powers soon to be introduced. Such legislation includes the so-called ‘Snooper’s Charter’ that will dramatically increase the security services ability to read and track online messages and media.
This comes at a time when the government has recently admitted to serious breaches of privacy and human rights law, for instance, by secretly reading the privileged and confidential messages between lawyers and their clients. This raises concerns about entrusting the government with drafting a Bill of Rights whilst at the same time reducing the external scrutiny and oversight that the European Court of Human Rights enables.
Keir Starmer notes that, coupled with other reforms that have uprooted legal aid, limited judicial review and restricted access to the courts, Conservative plans to repeal the HRA will ‘leave great swaths of executive action unchecked and unaccountable.’