The Human Rights Act 1998 (HRA) is a straightforward statute, that works by allowing individuals in the UK to enforce their rights in their local courts. The Act makes available a remedy for breach of a Convention right without the need to go to the European Court of Human Rights in Strasbourg.
It was designed to supplement the European Convention on Human Rights (ECHR). It also requires public authorities to respect the rights of those they serve. As a part of Labour’s 1997 commitment to a new constitutional settlement, it represented a new way of thinking about law, politics and the relationship between public authorities and individuals.
The Act provides that it is unlawful for a public authority to act in such a way that contravenes Convention rights. Section 7 of the HRA enables any person with standing to raise an action against a public authority which has acted or proposes to act in such a way that contravenes the Convention. A person will have standing to do so provided they would satisfy the “victim test” stipulated by Article 34 of the Convention. This is a more rigorous standard than is ordinarily applied to standing in English (although not Scottish) judicial review.
However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.
The rights protected by the Act are quite simple. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of speech, thought, religion, conscience and assembly; the right to free elections; the right to fair access to the country’s education system; the right to marry and an overarching right not to be discriminated against. Cameron has argued that it should be repealed since just 10 years after its implementation (the HRA came into force in October 2000) … so that he can pass another Act.
No other country has proposed de-incorporating a human rights treaty from its law so that it can introduce a Bill of Rights. The truly disturbing aspect of Cameron’s Bill of Rights pledge is that rather than manifestly building on the HRA, it’s predicated on its denigration and repeal. One has to wonder what his discomfort with the HRA is. The Act, after all, goes towards protecting the vulnerable from neglect of duty and abuse of power.
Do you really believe Cameron (Or Farage, who also states that he intends to repeal the HRA, given the opportunity) is more likely to build on existing rights and freedoms or to destroy them? The front page agendas of the Sun and Daily Mail indicate the latter. The Tories have hijacked the language of a Bill of Rights in order to weaken them.
The rights protected by the HRA are drawn from the 1950 European convention on human rights, which was a way of ensuring that we never again witness the full horrors of the second world war, and overwhelmingly, one of the greatest stains on the conscience of humanity – the Holocaust. Winston Churchill was one of the main drivers of the Convention, it was largely drafted by UK lawyers and the UK was one of the first countries to ratify it in 1951.
This was the establishing of a simple set of minimum standards of decency for humankind to hold onto for the future. The European Convention on Human Rights and Fundamental Freedoms (ECHR) was drafted as a lasting legacy of the struggle against fascism and totalitarianism, as well as the atrocities of world war two.
Yet the HRA is quite often portrayed by the Right as a party political measure. However, whilst the Human Rights Act is ultimately recognised as one of the greatest legacies of Labour in government, Cameron seems oblivious to the fact that Human Rights are not objects to be bartered away. They arose from struggles that were begun long ago by past generations who gave their lives for these rights to be enshrined in our laws.
The position of the Conservative party was clarified by Chris Grayling, the justice secretary, when he revealed late last year that “replacement” of the HRA would be part of the Tory election campaign. The only thing that has held the Tories in check during this government has been the opposition from Liberal Democrats to any diluting of the Act or to our commitment to the European Convention. The Labour Party, has been equally consistently adamant that it intends to retain the HRA, and to remain committed to the Convention.
The outcome of the local and European elections has now intensified the debate. The UKIP challenge will no doubt push the Tories even further right: to further distance itself from the obligations under the Convention, which is frequently wrongly described by Tories and the press as an EU treaty.
When the decision to give domestic effect to the European Convention on Human Rights took place in Northern Ireland, the negotiators to the Good Friday agreement made sure that this was included. The Labour Government agreed to incorporate the Convention through an international treaty with the Government of the Republic of Ireland on the basis of a quid pro quo. The Human Rights Act was a crucial part of the peace accord.
The HRA is misunderstood and very often misrepresented by right-wing politicians and the media, it has been variously portrayed as a threat to parliamentary sovereignty, a European imposition, and a “villain’s charter.” It is in reality, however, a victim’s charter. It provides a vital framework for such debate amongst people of good will.
Tory ministers are a major source of national embarrassment when they denounce the European Court of Human Rights whilst instructing the rest of the world, including other European states, to respect our collective international human rights obligations and “the rule of law.” Human Rights legislation exists throughout the free world. Free speech, the right to a fair trial, respect for private life and the prohibition on torture are values which distinguish democratic societies from fascist states.
An inquiry led by the Equality and Human Rights Commission demonstrated that the HRA has been effective in influencing the everyday practice and procedure of a range of public authorities, from the police to social workers, care homes to mental health hospitals. The HRA does not set criminals above the victim, despite the media myths. Nearly all of the rights are informed and qualified by the need for public protection, and many human rights cases have involved victims challenging governments for gross failures to protect them.
These are positive developments which UKIP and the Tories seek to overturn.
The case for the HRA is a strong one. It is a moral case based not only on learning from the history of some of the worst violations of human rights before and during the second world war, but also from recent history – the here and now. If a new settlement based on social inclusion and greater equality is to be reached, the HRA should not be viewed suspiciously, as a burden, but promoted as an instrument of equality, social cohesion and public purpose. It is expected of a democratic government to improve the understanding and application of the Act. That is an international expectation, also.
There is no justification for editing or repealing the Act itself, that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting the vulnerable from the powerful and ensuring those who govern are accountable to the rule of law.
Observation of human rights distinguishes democratic leaders from dictators and despots. Human Rights are the bedrock of our democracy, they are universal, and are a reflection of a society’s and a governments’ recognition of the equal worth of every citizens’ life.