Human Rights Act or British Bill of Rights and Responsibilities

By now, we should all be aware that the Conservative government has plans to repeal the Labour Party’s Human Rights Act (‘HRA’). Their aim is to restore the common sense application of human rights in the UK, whatever that means, by way of the British Bill of Rights and Responsibilities. Questions arise to why and how they’re going to be able to do this, with consultations starting to take place. The way in which we understand what human rights is definitely going to change in the UK; it is something that is going to be taken for granted once it’s been repealed. To get you up to speed, the after math of the Second World War provided a platform for countries to come together and set up safe guards to prevent those events from ever happening again. The European Convention of Human Rights (‘ECHR’) was drafted by the nations of the Council of Europe in response to the atrocities of the war. As a result of the UK signing up to this, the Labour Party created the HRA which came into effect on October 2000; HRA bridges the rights within ECHR to the individuals of the UK, who are then able to bring human rights claims to their own domestic courts, instead of heading to the court in Strasbourg. The ECHR sets out basic rights; prohibition of torture, right to life, right to respect for private and family life, freedom of religion, and expression etc. It is important to note, that some of these rights can be limited where it is necessary in a democratic society under the HRA. This very document has been under fire, with politicians and media tabloids tainting the HRA’s fundamental core principles i.e. providing rights to vulnerable people.

Now that the Conservatives have a majority government, they can try to push the HRA out of the picture and replace it with the British Bill. The real question is, how much different is the Bill from the HRA? It is important to note that currently there is no a final version of the Bill, what has been brought to our attention is though The Sunday Times leaking the official consultation document. There are a couple of troubling issues if the government so chooses to replace the HRA. Firstly, the Bill will limit the amount of damages that can be awarded for a breach of human rights.Section 8 of the HRA is very detailed in regards to what damages should be awarded, it’s difficult to see why the conservatives wish to change this, since there are very few damages awards made by courts in general, and those awards are very modest. The reasoning behind this could be that many people believe that compensation culture exists within the HRA, with what people imagine to be trivial claims that should not be using up our resources. What should be done instead is to improve training to prevent breaches of human rights in the first place that would be the logical answer.

Secondly, the Bill also wants to remove the extra territorial effect of human rights law. This refers to countries being able to exercise their authority aboard or have control over a territory; which is the one of the key functions of the ECHR and the HRA. The removal of this concept means claims from soldiers or their families or even from civilians abroad, will not be possible under the new Bill. They would have to bring their claims straight to the European Court of Human Rights (‘ECtHR’), where the UK will most likely be found to be in breach of the ECHR. Another issue, which Huffington Post describes as sinister, is that the Bill will limit the use of human rights to most serious cases with trivial cases being struck out by courts; many are not exactly sure how this will play out. These issues are only going to create a bigger problem for the Bill and the government, that being our relationship with the Council of Europe, as it could jeopardise the UK’s membership. As time has progressed our relationship with the ECtHR has become tense.

There has been speculation over the ECtHR's slow infiltration into the UK’s sovereignty, which has been termed “mission creep”. The UK is most concerned with the ECtHR’s attempts to overrule decisions of our Parliament and overturn the UK court's applications of convention rights. The ECHR has come a long way, with judgements and case law that have resulted in expanding rights in ways that its founders never had imagined. The world is a vastly different place compared to the 1950’s. The 21st century has growing human rights issues that no one could have possibly predicted when the ECHR was being drafted. Rights and case law that surround the ECHR have to reflect the world we live in today, what would be the point it they were to stagnate? It must be a living instrument.

Lord Woolf believes that European case law brings clarity to human rights issues. If the Bill was adopted these cases would be ignored; it would result in courts no longer being able to look at cases that have already been dealt with by the ECtHR. The clarity in the case law provides a model for individuals to identify what their rights are and how they might be limited. He continues to state that the new Bill will be a game-charger, since the whole system of case law will have to be revisited. This means that lawyers are going to think of ways of creating all sorts of areas of dispute, which will then have to be clarified either in our own courts or in the European Court of Justice, unless the Conservative plan is also to revoke rights to bring claims to European courts.

The fact of the matter is that the Conservative Party wants to strip the humanity out of the HRA, but seriously, it’s not “human” rights, but “British” rights. The aim of the Bill is to ensure those who pose a national security risk, or have entered illegally, cannot rely on “questionable human rights claims” to prevent deportation. Huffington Post eloquently puts it, “how we can be so obsessed with threats to our lives from outside our community, that we forget how easily we undermine them from within”. Geoffrey Roberston suggests that it would be an outrage if MPs rushed through a new Bill, they would be sacrificing our liberties to the pressure of internal Conservative politics, it would have a profound effect on David Cameron’s legacy .These alarming issues are among only a few concerns that have arose from the new Bill, however nothing is for certain. Hopefully as more information becomes available it can provide us with some answers to many of our ever mounting questions on the matter.