“David Cameron to ‘scrap’ Human Rights Act for new ‘British Bill of Rights’” – newspaper headline.
The Conservative Party (“Tories”) said at their recent party conference that one of their election pledges is that they will introduce a “British Bill of Rights” instead of the European one. In this article I’m going to try and explain the current situation (we as, as per usual, insufficiently educated on this, woefully misinformed, and misled by politicians and some media sources – not necessarily intentionally as such, but part of media and human nature in the current day is that we want sensation and quick information, not to actually read and focus and learn).
I put a flag here because I care about our country. The Conservatives, UKIP, and BNP like using our flag to try and show they’re the good guys and using the word “British” a lot, so I thought I’d try the same.
The Background – Current Situation
Lots of this is simplified, inevitably there will be mistakes and things missed out, but I’m trying to be as brief as possible on a complex issue as best I can, and there’s a lot to cover.
In 1948 (?), the United Nations (UN, an international organisation at which every country (*subject to issues about recognition as a country) gets a voice) published the Universal Declaration of Human Rights.
Human Rights are a concept of giving every individual a basic core of rights, fundamental legal protection, which either cannot be overcome (absolute rights, such as the abolition of the death penalty) or are protected (qualified rights, which can be overcome but only when it is necessary for some benefit, and in a procedure which is overlooked by the courts). It’s an intersection of philosophy, political theory, and law.
Broadly speaking, the purpose of having a legal system and a judiciary is that somebody else gets to check decisions made by someone with power. Parliament makes laws and the government carries them out under this authority: the place of the Judiciary (posh word for the system of Courts and Judges) is to make sure that the government, as everybody else, follows the laws. The same way we can get taken to court for committing crimes and can take other people to court for hurting us or breaking a contract, so too can government departments, individual ministers, and local councils be taken to court for breaking the law.
It’s important this is an independent third party (one not involved in the dispute between parties one and two) makes the decision so that it is fair. Remember when you were a kid, and your mum promised you could have a cookie when you got home, but then later changed her mind and it was really unfair? That’s because she got to make the decision about the rule that she made. When people in power get to check the use of power themselves, they can easily abuse it (and it is hard not to). So we have courts to check the government is doing the right thing.
(side note: the coalition government has recently done some things which make the judiciary weaker, and this is really actually quite dangerous, such as reducing the amount of legal aid and who is entitled to it (legal aid means people who can’t afford to go to court get money to help them; without it, these people cannot enforce their rights and are open to be tramped upon) and trying to limit the situations in which the courts can look at whether the government is doing something corretly with Juridical Review)
In some countries, there is a constitution which includes some basic rights for people. The American Constitution has this, as does the French, the South African, the German, and many others. But the United Kingdom does not have this. We have neither a Constitution, nor any rights protected by the constitution. We instead have a principle of “parliamentary sovereignty”, which means that parliament can make any law that it wants. If they want to make a law to kill people or steal your houses or remove you from a house, they can do that and there’s nothing you can do about it. The only rights we have are those given to us by law, and they can be taken away too, so there is nothing to actually protect us from the state.
The other constitutions have these basic rights which allow the court to take action against the government if they are breached. A few quick examples: in South Africa, the government got taken to court for not doing enough to help homeless people, and the judges ruled that the government had to do more and gave directions for some things they had to do. In Germany, the government can get taken to court for invading people’s privacy in spying on them, and the court can say that it isn’t allowed. In the UK, this cannot be done – or at least, couldn’t until the Human Rights Act, passed in 1998.
Following the Universal Declaration of Human Rights, which was just a concept published by the UN with no legal power (because the UN can’t make law, apart from some international law, so is more political), some countries or groups of countries used this declaration to make their own Conventions of Human Rights. This was usually done by a body which was a group of countries and is entirely voluntary (so for example, the United States has not signed up to any and can’t be held accountable for naughty things that they do).
For us, we signed up to the European Convention of Human Rights. This is actually separate to the European Union and was done through the European Council, which is a political group of all the countries in Europe (I think…). This also created the European Court of Human Rights, which sits in Strasbourg. People can take cases to this court against their government if they think that their government has breached their human rights.
BUT the rulings of this court have no legal power, as such: it is just a statement from the court that the country is in breach. It can be ignored: an example is Russia, who have signed up to the ECHR (convention) and are taken to the E.Ct.H.R (court), but just ignore whatever is said. It has no power over the states, as states are sovereign and nobody can tell them what to do apart from themselves.
In the UK, Parliament is sovereign and has all the power (coming from the Queen, who rules from God and conquered us all, but was nice enough to give her power to Parliament). In Germany, the people are sovereign but have made a constitution, which governs how the political system works and how the courts work. Because the constitution is sovereign, people can take the government to court for breaching it. In the UK, we can only take the government to court for breaching laws made by parliament: if they make a bad law, nothing we can do.
Enter the Human Rights Act 1998. This bridged the gap between the European Convention of Human Rights (which cannot be enforced, just gives opinions) and the law in our country (domestic law), giving the courts some powers to enforce the Human Rights Act.
Note: it was passed into law in 1998, but was actually written before this, and lots of the writing was done by Conservatives: the Labour government only came into power in 1997, so while it was passed by their parliament, it was written before that.
The Human Rights Act was popular with (almost) everyone. It managed to build a tricky bridge between keeping power at home – national sovereignty in Parliament – while allowing the ECHR to be used. Parliamentary Sovereign was preserved by it – partly because the courts only have the power to do anything because of the Human Rights Act (which was passed by Parliament and is not part of a higher constitution), and party because there is no power from the HRA for the courts to strike down legislation.
The Human Rights Act provides two powers to courts (in Section 3 and Section 4):
Section 3 says that all legislation (laws made) must be interpreted as far as possible so that it complies with Human Rights. This gives judges the power to adjust statutes slightly to be better. A common example was a law about husband-wife relations, which was interpreted so that it was the same for civil partnerships, not just marriages.
Section 4 says that if the judges can’t adjust the legislation, they can make a “declaration of incompatibility”, where they say that the law does not fit with the European Convention of Human Rights.
This does not mean that they can strike down any legislation. They cannot say it is invalid, and it does not give them power over parliament. They simply say “this doesn’t match, you should change it to match”.
Regarding the relationship between the European Court of Human Rights in Strasbourg:
People can go to normal courts for a breach of their Human Rights, and then if they aren’t happy they can carry on to the Strasbourg court, one step higher than our Supreme Court. The Strasbourg Court then makes a ruling, but it is not binding to us – like I mentioned before, it is just an opinion. The courts in the UK (or at least, England and Wales) then have to make a new ruling with the Strasbourg ruling in mind. They are not bound to follow it, but they do have to take it into account and give it strong consideration, so only don’t follow it when they have a good reason. This is a great idea, as it means that our courts make the decision about us, and that they get to choose how it applies to our country, our law, and our system (whereas the Strasbourg Court is saying things which apply to all of Europe).
The ECHR, E.Ct.H.R, and HRA combined have done lots of good things for us as citizens in protecting us from the government. The government makes mistakes, as all of us do, and it’s good to have a power to stop them. Some examples include:
stopping the police from keeping records of fingerprints and DNA if they have taken it for a suspect who was then innocent (instead of keeping it on a databse); protecting rape victims as witnesses in court from being questioned by their attacker; given same-sex couples the same rights as male-female ones; said that gay soldiers cannot be discharged from the army for being gay; and has given in general more protection to people being arrested or imprisoned or attempted to be deported.
The deportation one is a contentious one, because Theresa May as Home Secretary keeps trying to deport people, and it keeps being said that that would be against their Human Rights. This often means they have a family in the UK, and she is trying to send them away. The Human Rights stuff doesn’t stop her doing this, but it does say it has to be proportionate: so somebody who has committed theft can’t be kicked out if their family is here. This is good for the criminal, who gets to stay with their family, and the family themselves. Though we might not like what the criminal has done, they ought be respected as a human and treated fairly, and that’s all the Human Rights Act asks. One big case which Theresa May didn’t like was with Abu Qatada, who she wanted to deport for his extremist religious views and potential links to terrorism, despite having never been found guilty of anything, but was repeatedly stopped by the courts (until last year, when he was deported after an agreement that Jordan, the country he would be deported to, would not torture him (that’s what human rights does for us!).
The Tory Promise
The Conservative Party have talked for a long time about a “British Bill of Rights” and about “Bringing Rights Home”, and similar. Essentially, they’re talking rubbish to try and win back people who support/vote UKIP and pandering to supporters of their own party (both MPs and voters) who are also anti-europe, and using it to gain more power for them.
As I’ve explained above, the Human Rights Act (and ECHR, and E.Ct.H.R.) doesn’t mean that Europe can “tell us what to do”. It just means our courts have to listen to what they say, and that our courts can enforce our human rights to protect us from the government. If the E.Ct.H.R. says we are doing something illegal, we can just ignore it – like we have done in the case of prisoners’ voting. Parliament can just say, as it has said, that it will not change it. And it remains the way it is, the Strasbourg court cannot change it.
The Convervatives are not pledging to withdraw from the European Convention of Human Rights, so our government can still be taken to court there for doing bad things, and taxpayer money will still be spent on this. So it doesn’t save us money or reduce litigation, and we are still signed up for it.
“A future Tory Government would scrap the Human Rights Act and replace it with a new Bill of Rights to give Britain more control over the laws that it implements, David Cameron said today.”.
As I’ve explained, this is nonsense, as Britain already has complete control over the laws it implements, the Strasbourg court has no power. The cynic in me wonders if David Cameron (and the Conservative Party) actually just want to give the government more power and the courts less power. It isn’t a meaningful change, because we won’t pull out of the European Convention (which, by being in the European Union, we aren’t allowed to do either – although it is separate, signing up to the ECHR is part of being in the EU), and we already have the situation he says we do.
For Human Rights and Dismantling His Argument
…
but only quickly.
In his speech the Prime Minister cited the issue of prisoner voting to make the case for reform, and criticised the European Court of Human rights for a series of decisions that “are frankly wrong”:
“Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the human rights convention even on the battlefields of Helmand.
“And now – they want to give prisoners the vote. No, I’m sorry, I just don’t agree.
“Our Parliament – the British Parliament – decided they shouldn’t have that right.”.
That’s what Dave said in his speech, and I’ll tackle it.
The rulings stopped us deporting “suspected terrorists” illegally – we can still deport them legally. But this requires proof and crime: if our government can simply deport people from our country on a mere suspicion, without having to actually prove anything, that leaves us with very little power. And this is a country which classified the pro-democracy Occupy London protest as “domestic extremists”, has been spying on other activists (activism being an important part of politics and democracy), and even spies on some Green party politicians.
Application of the Human Rights convention on the battlefield of Helmand? Yes, that’s correct: Human Rights apply to everyone – that’s why they’re human rights. So you can’t kill anybody you like and have to follow the laws of war. Given the war we’ve been fighting, I don’t see human rights actually stopping us from doing anything good that we want to do, and have seen no evidence of this. So this is just more hot air.
(On prisoner voting: whether I think prisoners should or shouldn’t have the vote, the Strasbourg Court has given its opinion, and our Parliament has said that it is ignoring it and making its own decision. Which is fine: Britain is still making the decision about what happens in Britain. So Mr Cameron is, again, not saying anything of any substance. (The E.Ct.H.R. said that the blanket ban we currently have is not lawful, and didn’t tell us specifically who can and can’t vote. I think we should have a more balanced approach where some people should be allowed to vote and others not. Strangely, this is an odd British issue – in America, people in prisons can vote, and that’s America which is pro-torture, pro-death penalty, pro-spying on innocent civilians and pro-assassination.))
Remember I said at the start that the purpose of the judicial system is that someone who is an independent third party gets to make the decision about whether someone is following a rule? That’s the point of a Court of Human Rights: they are independent in saying whether we are or are not following the law on Human Rights. And there may be some advantage to having this done by somebody who is outside and above our own country: if our courts were the ones with a final say, they can be overruled by Parliament (because of parliamentary sovereignty), so having a European Court to decide is a very good way of protecting us from our government.
So, hopefully that gave some information that is lacking from our public knowledge and isn’t being explained well enough in the media, especially the Daily Mail.
If you think I’ve made any mistakes, please let me know in the comments. If you think this is informative, please share it, because it’s quite important.
If anyone wants to publish this anywhere else, just get in touch to ask!