The Human Rights Act: To be or not to be?

The Conservatives have advocated a British Bill of Rights to replace the Human Rights Act (HRA). Cameron and Grieve have both recently made this clear. I’m still not sure why.  If a Bill of Rights is to replace the HRA, it follows that there must be something wrong with the HRA that a Bill of Rights would remedy. So, if we are going to be intellectually honest in this exercise, rather than politically Machiavellian, then we need to point out specific problems with the HRA that need to be fixed. Surely a true Conservative must eschew change for change’s sake. If it ain’t broke, don’t fix it (or however Burke put it more elegantly than that).

But this is where the problems start for the Conservatives. There is not only a lack of coherence with many of the arguments put forward against the HRA, but indeed there is a lack of consistency within the Party itself.

Let’s start with the substance of the rights protected by the HRA. As Grieve put it recently at a JUSTICE fringe meeting at the Party Conference, there is not much a right-minded person (and indeed I would add, a right-minded Tory) could disagree with. But part of the problem for the Party is the tension between the libertarians and the authoritarians. The Chris Graylings out there want less rights and more wrongs; David Davis and the libertarians want extra protections (i.e. rights) for the individual to protect him or her from the state. Somehow these conflicting interests need to be reconciled, a point recently highlighted by Henry Porter for the Guardian.

As far as the form of rights enforcement goes, criticism has been levied against the HRA that it gives too much power to unelected judges at the expense of Parliament. First of all, it is clear that Parliament has failed us when it comes to protecting us from an over-bearing Executive. So yes, Parliament should have a greater role in rights protection. But that has nothing to do with the HRA. It has to do with a lack of proper legislative scrutiny by Parliament. Laws (and as such rights) need to be interpreted. That is the role of judges. In any country that abides to the principles of liberalism, democracy, and the separation of powers (as we do) there must be continual dialogue between legislators and judges. The HRA provides for this whilst maintaining the Conservative foundational value of parliamentary supremacy. One mustn’t forget that unlike many other countries, judges in the UK have no strike-down power to invalidate legislation. At most, they can simply declare that laws are contrary to human rights standards. It remains for Parliament to decide what should be done (if anything) to remedy this.

It is true that the HRA has come under some criticism in the popular press. But the stories about how the HRA has defied common-sense, has unjustifiably let criminals go free, has hindered the fight against terrorism and so on, are almost all untrue. Dennis Nilsen never had a right to pornography; nor did the HRA prevent the police from having ‘Wanted’ posters, to name but just two such myths. It is disingenuous, and indeed wrong, that some politicians and journalists use lies and myths to trick the public.

The only problem that I can see with the HRA itself is that it is perceived by some in society (and many within the Conservative Party) to be flawed. The question is whether or not this is a sufficient reason to replace it with a Bill of Rights. A ‘copy and paste job’ with a change of title may be a huge waste of effort, time and money. To me, this seems a classic case of smoke with no fire. The HRA may have been misunderstood and even misapplied by some officials. This however does not make the case for the wholesale dismantling of a perfectly good piece of legislation. If anything, there should be better education about the Act – maybe this is what a Conservative government could focus their efforts on.

This issue is not and should not be a party political one. All liberal democracies have constitutional protection of rights – many have them placed in written Constitutions such that they are to a degree immune from political tinkering on popular whims. We don’t have such a system in place. And so, it is fundamentally important that this debate over a Bill of Rights does not descend into a game of party political football. There would be nothing worse than having a Conservative Bill of Rights, followed by a Labour one 8 years down the line. The fabric of our constitution is fragile. We must not start picking at its seams simply for political capital. If the debate is to be had, it must be done honestly and with integrity. We must reject our prejudices. We must reject the popular political manoeuvring over the issue, often based on lies and myths. We must distil the arguments and focus on specific problems with the HRA. Jesse Norman and Peter Oborne have recently published a pamphlet making the Conservative case for the HRA. I would strongly recommend that all Conservatives read it, to come to their own conclusions about the merits of any repeal of the HRA.

The HRA ought not to be a major battlefield between the parties, but there is the danger that the Conservative Party will make it into one. There is, however, still time to rethink this. If the HRA is not actually as bad as it is sometimes made out to be, we may in fact be better off sticking with it.

 Posted by Administrator, on behalf of Qudsi Rasheed, writing in his personal capacity.  Qudsi is a Legal Officer at JUSTICE, the all-party law-reform and human rights organisation.

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