Unfamiliar with the Human Rights Act and the debate about it? Never fear - have a look at this brief introduction to what the brap everyone is talking about! What the brap_HRA (440.54 kB)
Recently we were given the opportunity to exchange our Human Rights Act for a British Bill of Rights. Read the small print, though, as you might be getting more (or rather less) than you bargained for.
By way of a brief introduction:
- the European Convention on Human Rights (ECHR) is an international treaty setting out fundamental rights
- the European Court of Human Rights (ECtHR) was established by the Convention: its role is to ensure the countries signed up to the Convention respect the rights and freedoms it sets out
- the Human Rights Act is UK legislation that puts the rights and protections set out in the Convention into our law
- the Supreme Court is the final court of appeal in the UK
The Conservatives have said that our current Human Rights Act undermines UK Parliamentary sovereignty and their new Bill would address this by changing the relationship between the ECtHR and the British courts and ensuring “there is a proper balance between rights and responsibilities in UK law”. They suggest the Human Rights Act goes ‘far beyond’ what is required. They outline their argument and plans in an eight-page proposal document which can be read here.
We spoke to brap CEO Joy Warmington about the proposed changes and what it might mean for equality and human rights in the UK.
Should we be concerned about a new Bill of Rights?
The strategy document says the Conservatives won’t introduce new ‘basic rights’ through this reform. But they don’t make any such assurance about rights being removed or amended. Since the rights set out in the Convention are to be considered inalienable, the potential for this kind of amendment is of concern.
In addition, the proposals set out changes that would include breaking the link between British courts and the ECtHR, making the UK Supreme Court the final word on human rights rulings. But the Supreme Court is already the ultimate arbiter on these issues in the UK. British courts have to ‘take account’ of ECtHR rulings but are not bound to those rulings. This is evidenced by cases where Britain has departed from the ECtHR’s rulings (the proposal document itself actually points to an example of this: prisoners voting).
The key question we need to ask about all this, though, is really quite simple: what would the difference between our existing Human Rights Act and the proposed Bill actually be? The Law Society have responded to the announced plans saying the suggested Bill of Rights would be an “unnecessary duplication and complication” in the protection of human rights. I think they go on to say, rightly, that “the Human Rights Act already provides an effective safeguard for fundamental rights as well as preserving parliamentary sovereignty”. So why is a change being suggested?
I’m reminded of what the late Lord Bingham said about the Convention in 2008: “Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them un-British?”
Are there any other proposed changes to keep an eye on?
One of the proposed changes is to “limit the use of human rights law to the most serious cases”. The proposals claim this would mean human rights legislation would not apply to “trivial cases”. Does this suggest that the proposed Bill would amount to some rights being taken away from us? How can this be justified? Who is to decide what is ‘trivial’ and when human rights may or may not be brought to bear on a case? Surely as long as you remain human, human rights remain applicable.
People are talking about withdrawing from the Convention. What would this mean in practice?
As a consequence of the proposed reforms the ECtHR would no longer be able to order a change in the UK law and would become an advisory body only. This would mean that in cases where the ECtHR judges that UK law contradicts the fundamental rights set out in the Convention, the UK will only have to consider this judgement as ‘advisory’. The UK government would introduce a new parliamentary process to consider judgements from the ECtHR and only those judgements that Parliament agrees with would become binding. This is a worrying precedent – what other court rulings would Parliament be able to reject in future? How powerful do we want the government to be?
I think we need to consider this extremely carefully. By signing up to the Convention we have agreed to respect the decisions it makes. As such, the proposed change would put us in conflict with our international obligations and almost inevitably lead to the UK pulling out of the Convention. I agree with the former head of the ECtHR when he says this would not only be bad for the reputation of the country, but ‘potentially destructive’ for the Convention as a whole. After all, if the UK – one of the founders of the Convention – leaves, what message does that send to other countries? Closer to home, though, withdrawing from the Convention in this way would leave our human rights vulnerable to amendment and abuse at the hands of future governments.
Even if human rights law is well-meaning it’s led to some crazy decisions, hasn’t it?
We talk to people every day about human rights so we know the Human Rights Act has a bad press. Most of what people tell us, though, is based on myths and rumours. For example, people often tell us the police gave KFC to a burglar because of ‘human rights’. They didn’t. We often hear that the police can’t put up ‘Wanted’ posters because of people’s right to privacy. They can. A particularly strange one is that human rights stops people from wearing religious symbols at work. This is actually the opposite of what the situation is: the ECtHR recently found in favour of a BA airline steward who was told to cover up a piece of religious jewellery she was wearing.
The Human Rights Act and the Convention have actually had a huge, positive impact for a lot of people. Couples kept apart by being placed in different care homes, for example, have used the Act to overturn such decisions. Patients at Mid-Staffordshire hospital used the Human Rights Act to challenge the treatment they received. The ECtHR recently ruled that a disabled woman had a dignity infringed when her local authority withdrew night-time care. The list goes on and on.
So we need to do more to tackle the negative press human rights receive?
Undoubtedly. We’ve allowed our understanding of human rights and the entitlements that go with them to be corrupted by images of prisoners demanding pizza. As a consequence our engagement with these proposed changes – or, indeed, lack of engagement - is not surprising. My worry is that, because we don't really understand human rights, we don't know how much we'll miss having our current human rights protection until it's gone. This is an issue for everyone: it’s not restricted to one political party or organisation. Politicians of all stripes face a challenge in building a compelling narrative around human rights in face of public misunderstanding and media hype. We all need to get better at challenging negative language, emphasising the link between human rights and everyday life, and improve understanding of how human rights legislation works in practice.
So what’s the bottom line?
The main thing we object to in this document is the proposals which would reduce the circumstances in which human rights can be used and the people who can make use of them. In our view there are no cases too trivial to consider people’s rights. By definition human rights are inalienable, they are fundamental and can’t be removed, and they apply to everyone all the time.