Saturday, 8 October 2011

UK Bill of Human Rights (15/8/11)

There is an intersting article on the proposed Bill of Rights on the UK Human Rights Blog and some thought-provoking comments in response to Adam Wagner's article in the Guardian on this topic: http://www.guardian.co.uk/law/2011/aug/08/british-bill-rights-consultation-complicated

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.

3 comments:

  1. You may also want to take a look at the Discussion Paper: Do we nee a UK Bill of Rights, at http://www.justice.gov.uk/downloads/about/cbr/cbr-discussion-paper.pdf

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  2. Just posted this in reponse to Adam Wagner's blog: Are Human Rights to Blame for the Riots? Excellent post Adam. I was shocked to hear that this was Cameron’s response to the riots; his statement is not at all helpful for the perception of human rights in the UK. Already we have a culture whereby human rights are perceived as somehow ‘ridiculous’ (not helped by some of the UK media coverage) and this just adds fuel to the fire. I have see Cameron’s statement – that the ‘twisting and misrepresenting of human rights... [has] undermined personal responsibility’ – all over the internet, in some cases, it has been interpreted, worryingly, as a direct attack on human rights. Even so, I’m not sure I really understand what he means. The very point about personal responsibility is that it is personal: each person takes responsibility for his/her own actions and accept the consequences which ensue. Surely a few questionable judgements from the ECHR cannot undermine something as fundamental to the human condition as this. I’m glad Cameron has also started exploring other avenues as a response to the riots...

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  3. 31/8/11



    Commission supports myth-busting human rights The Equality and Human Rights Commission has today (17 August 2011) written to the Prime Minister to say it will "help to dispel myths that may have built up" about human rights and to help crime victims understand their human rights. The Commission’s Chair, Trevor Phillips, wrote to David Cameron in response to the Prime Minister’s speech about the recent disorder to offer its support to Ministers. http://www.equalityhumanrights.com/news/2011/august/commission-supports-myth-busting-human-rights/

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