05 November 2008

In Defence of the Human Rights Act

The Human Rights Act is a favourite scapegoat of the low brow tabloids and seems to be the first in line to get the blame for anything that goes wrong. Occasionally the criticism is fair, but more often than not it isn't, mostly, it seems, due to mis-representation of what the act is; I'd be very surprised if most of the people that complain about it have ever read it.

It's probably worth saying at the start that it isn't anything to do with the EU and it isn't anything particularly new. The HRA enshrined in British law the European Convention on Human Rights which was ratified by the UK in 1951 and was drawn up as an attempt to safeguard against a repeat of the horrors of Nazism. Since then, Britons have been able to go to the European Court of Human Rights if they feel there has been an infringement of their rights. Throughout that time, the whole issue of human rights didn't seem to concern the tabloids. The HRA merely made the rights enforceable in British courts, avoiding the need to go to Strasbourg as a first port of call. Functionally, our rights are still the same as they have been for nearly sixty years, but it is only now that it the tabloids have decided to get up in arms.

Taking an overview of the HRA/ECHR, I think it works well in some areas and not so well in others.

Where it works well

• In the main, it works well, because it takes the correct approach for a constitution or a bill of rights in that it focuses on defining negative rights. In other words, it places constraints on the government by saying what it mustn't do rather than saying what it must do. This is a very important distinction. Any bill of rights should draw a line beyond which the government shouldn't be permitted to go (such as imprisonment without trial) and in doing so, define what is the maximum permitted use of its powers. Defining the minimum that the government must do with its powers is the opposite of that.

For example, the HRA says that "no person shall be denied the right to education," not that "the government must provide an education." Of course, the electorate may decide that providing a system of state education is a good idea, but suggesting that it is a right is dangerous, as rather than constraining the government, it would give it greater power, by allowing it to do almost anything necessary to provide that education, as it would be obliged make people teach. That kind of "positive right" would also be a meaningless right, as it wouldn't define a specific standard of education, nor would it ever be possible to.

Similarly, the HRA says that everybody should have the freedom "to manifest his religion or belief, in worship, teaching, practice and observance," not that "the government must provide facilities for religious worship."

• It focuses on most of the key rights, such as the right to life, freedom from slavery, the right to a fair trial, freedom of throught and expression and freedom of assembly and doesn't stray too far into areas which could be construed as contentious matters of political opinion.

Where is doesn't work well

• The fact that the ECHR was written to cover a number of nations with very different customs and legal systems means that on certain issues it is silent or vague. For example, it makes no mention of a right to trial by jury, as juries are not a feature within the civil law systems which are the norm on the continent.

• There are broad and ill-defined get out clauses attached to some of the rights, which allow them to be restricted "in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." Without a more detailed definition, "public order" and "morals" cover such a broad range of issues that they could be used to justify almost anything.

• In one section, it refers to "Every natural or legal person." Including legal persons (i.e. corporations) in a declaration of human rights is counter-intuitive and dangerous. Corporations only exist because they are created by the government and there is no reason that they should be treated as having the same fundamental rights as humans. The structure of corporations should be defined in company law, not a constitutional document.

So, it isn't perfect, but what are the alternatives?

The HRA and ECHR could be repealed in the UK, but that would solve the problems within the present situation by removing the few constraints on government power that we have, which would be a far worse position to be in.

The other alternative would be to repeal HRA/ECHR, but replace them with a Bill of Rights. I can't see that being anything but considerably worse at this moment in time. The government has already talked about introducing a Bill of Rights and Responsibilities (in addition to of the HRA/ECHR), which hints that they are intending to do away with the concept of fundamental rights and turn them into something the government owns and gives to the people that do its bidding, in the form of the responsibilities it lays out. There is no need for responsibilities to be defined in a Bill of Rights, that is the purpose of criminal and civil law and it does it perfectly well. The proposals also talk about introducing the kind of positive rights that the HRA/ECHR quite rightly leaves out.

So, of all the available options, the status quo appears to be the best by far and until I see a suggestion that improves on it, I'll support the Human Rights Act.

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