It has become apparent that the Human Rights Act that the Labour Government signed us up to has become something of a joke. I am no legal expert but even if the HRA was working in the way it was designed then it is still a mess. It is a mess because its implementation has allowed the type of stupid cases that originate from Europe on a regular basis.
It has become the fear of the HRA that is the worse aspect.There was the recent case of the roof top protester who "had" to be given Kentucky Fried Chicken because not to feed him was against the Human Rights Act - there are many more examples. We are now afraid not to feed the chap because he might sue someone.
So why should Britian not have its own Bill of Rights? Germany have one so why not us?
But there is another issue. The HRA enshrines in UK law the right of Judges to argue that parliament, in setting a law, has acted in contravention of the HRA and therefore the law should be changed. I accept that Parliament frequently makes a pig's ear of framing new laws but the idea that a democratically elected institution is not able to make law unless the judiciary decides is absurd.
Before the HRA the system operated that EU Judges could decide whether new law was in contravention of the Convention on Human Rights and the Minister in London could decide what he was going to do about it. It seemed to work quite well and during the period between 1975 and 1996 only 316 cases were considered and in 16 of them a change was made. In the 18 months after the UK implemented the Human Rights Act some 431 cases were considered and in 316 of them the outcpme was affected.
At least a UK BIll of Rights would allow us the opportunity to clearly define what are the rights and responsibilites of UK citizens.
BBC NEWS | Politics | Tories want a UK Bill of Rights
8 comments:
The HRA enshrines in UK law the right of Judges to argue that parliament, in setting a law, has acted in contravention of the HRA and therefore the law should be changed.
Not true. The beauty of the HRA (I consider it one of the few things this lot have got almost right) is that when legislation conflicts with the HRA, all that a Judge can do is return it to Parliament to decide one way or the other. If Parliament then votes to override the HRA, then Parliament would be free to do so - it could then go to Europe.
It's a very unusual way of framing legislation, that specifically doesn't give power tot he judiciary; it instead asserts that when a judge finds a conflict, that Parliament should then decide. In the US, the court decides for itself completely. This gives power to Parliament, not the judiciary.
I don't disagree with your knowledge. However the issue is that it does not return to Parliament but to ministers and in most cases they are obliged to accept the Judges position because if they did not what is the point of enshrining the HRA. Yet more undermining of Parliament!
But a majority in Parliament should not be able to infringe the rights of minorities just because it is a majority. What other system could safeguard the rights of everybody unless adjudication takes place by the Judiciary rather than the Executive.
By the way I fear your faith in Parliament is misplaced. Most Bills are not fully scrutinised these days due to timetabling. Apart from most of his political views we I miss the late Eric Forth because he would try everything to try stop legislation passing which had not been fully tested.
I don't see why we need a human rights act at all. We managed perfectly well without one until 1998 and the whole idea is totally alien to our legal tradition. Any such act will inevitably lead to odd decisions precisely because common sense values are codified. I don't see that your point that Germany has these wretched laws is any argument whatever for Britain having them.
What's wrong with the Bill of Rights that we already have, passed in 1689 and which is still on the statute book?
The European Convention is nothing to do with the EU. The European Court of Human Rights (which determines whether a state has breached the convention) is not the same as the European Court of Justice (which is an EU court).
The drafting of the European Convention on Human Rights came from the Council of Europe, which is also nothing to do with the EU.
The HRA has significant advantages in that it is based on the content of the European Convention which is external to Parliament and quite stable.
A Bill of Rights (which I actually support), would not solve the problem of sending people to countries to be tortured (what kind of rights would that be?) plus we would still have to be in complianceo with the European Convention in any case (for several reasons, some of which are quite technical).
A Bill of Rights would have other interesting consequences. Notably the content is free standing and therefore can be added to by any majority in Parliament, so is likely to be more extensive than the HRA, but of course in a sense is preferable as the content would have been agreed as part of our own political process (including elections and parliamentary debate).
It would inevitably lead to laws being able to be struck down by the courts which we currently don't have.
Finally it would lead us in the direction of a written constitution to try to stabilise the thing (ie trying to sort our how it can be amended and overridden).
Plenty of other countries have a Bill of Rights - the US, South Africa, Canada (in fact most countries with a written constitution) so its no big deal but is somewhat of an innovation for our system of government.
Nevertheless I am still in support of it. In spite of being proclaimed by Cameron, I think it would split the Tories in Parliament and would only be carried by Labour and Lib Dem MPS and peers; but again maybe that's no bad thing.
In my above post I somewhat cryptically stated that the reasons were quite technical why we would still be bound to the European Convention and rather than leave it like that thought I would put my cards on the table rather than leave it looking mystical.
First of all being a signatory to the ECHR is a requirement of being a member of the EU.
Second is that even if you pull out of the EU (and pulling out of the EU so you can resile from a human rights convention is pretty big step) the whole system of human rights internationally is built on a kind of internationalised 'peer pressure'. Being the only European state to pull out of the ECHR would be difficult to sustain and would significantly lower our internatioanl standing.
Thirdly; if we pull out of the ECHR we are obligated internationally to sign up to the International Covenant of Civil and Political Rights (ICCPR) and the content on torture isn't that diferent to the ECHR. We have of course already signed up and the reason for our not allowing the right of petition by citizens is that they have theis to the ECHR in Strasbourg.
Fourth, even if you pull out of all human rights instruments (to my mind unthinkable), it is highly likely that the House of Lords as a judiciary will proclaim the existence of a higher law, of which they are the guardians and to a large extent the ECHR has now largely entered into the substance of UK law and disentangling them may no longer be possible in the same way that you can't unthink an idea.
To give an example. Once you've had the thought that torture is unacceptable in a civilised society then its very difficult to go back on that. And the recent rulings by Law Lords don't give a picture of people who are in any mood to do so.
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