It seems to me that much of this concern about the 'dangers' of the Human Rights Act 1998 is unfounded.
The Act was defined as inter alia giving further effect to rights and freedoms guaranteed under the European Convention on Human Rights (ECHR) BUT it is subject to limitations and controls:
- Does not grant the courts the power to strike down domestic legislation that is inconsistent with the Convention
- Parliament is free, if it chooses, to enact legislation that is not compatible with the Convention
- Act is not entrenched against appeal.
This extract from the conclusion of R v Mental Health Tribunal (2001) gets to the point:
“The United Kingdom has of course been signatory to the European Convention since its outset in 1951. Since 1966, it has granted the right of individual access, and there have been a considerable number of cases against the United Kingdom before the court. We now have incorporated the Convention into our law by the Human Rights Act of 1998. But, as it seems to me, the view that that makes a sea-change is an erroneous one. We have had, over the years since 1951, to comply with the terms of the Convention. Sometimes, as decisions of the court have made plain, we have not succeeded in doing so. But for the most part, the practices and procedures carried out in this country do comply with the terms of the Convention, and it is wrong to approach the matter with a view that there may be a breach. Rather, as it seems to me, the approach should be that the court will not accept a breach unless persuaded and satisfied that there is one.”
There is, generally within the UK, overriding compliance with Convention rights. Therefore, whilst the HRA assists access to these rights (at least procedurally) it is actually a fairly superfluous piece of legislation. As long as we are party to the ECHR, the rights we have protected now will remain protected, whether through a British instrument (the HRA or the proposed Bill of Rights), through the judicary or the court in Strasbourg.