In our collective memory, some periods stand out as the landmark legislation of the time, such as the 1945 parliament for the welfare state, or 1987 for the poll tax. In 1997, Tony Blair’s most radical reforms were Scottish and Welsh devolution and the Human Rights Act. Fifteen years later, all three are under strain but the shrillness of the responses is distorting the arguments.
Since the election, the Tory majority makes the government’s pledge to replace the Human Rights Act (HRA) with a British Bill of Rights a real possibility. Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken, assuming the worst when it is far from clear that a new framework of British rights would be any less protective of individual rights than the HRA. A British Bill of Rights is a good idea.
Listening to the clamour against this, one gets the impression that the United Kingdom lived in a human rights vacuum from 1951-2000 before the HRA came in. Then, UK courts were not the final arbiter in judgements and cases ended up in Strasbourg at the European Court of Human Rights (ECHR) for final rulings.
Yet even the architects of the act admit that its functioning has been different from what was intended. Section two of the act states that UK judges “must take account” of ECHR jurisprudence. This has been interpreted too literally by UK judges in their enthusiasm to embrace the European court’s judgments. Ordinarily, when national courts interpret statute and precedent they tend to reflect national culture and tradition; but when a court with judges from 47 countries rules as a sort of Supreme Court for Europe, there is an unwelcome uniformity of rulings which disregard different values and political cultures across the states that are subject to its rulings.
In Britain, the HRA has caused a stretching of what it means to protect basic human rights. Recent rulings by the UK courts that human rights law applies to UK defence forces in foreign battlefields have constrained in-theatre decisions and imperilled soldiers’ lives. The implications of the ruling were more wide-ranging than the UK court intended, and the effect is palpable.
Alongside this, the ECHR is widely regarded as expansionist, on account of the court’s view that that human rights are a “living instrument” and can be applied ever more broadly to account for social and economic change. While national supreme courts are subject to parliamentary override, this is no longer the case in the UK with judgements from the ECHR, pace the furore over prisoner voting. But other countries apply this variably—in Germany, for example, where domestic law takes precedence when there is a conflict between judgements.
The HRA is riddled with unintended consequences. Yet this is not to say that the Tory proposals are free of problems. The government has not published a draft of its proposed bill of rights. It states that the government will not pull out of the Council of Europe—the institutional body within which the ECHR sits, but it will have to do so to achieve greater UK domestic jurisdiction, and success is uncertain. Finally, since the HRA was enacted, there have been devolutionary settlements where the HRA has constitutional status, or in the case of Northern Ireland and the Good Friday Agreement, international treaty status. So repeal would not be straightforward and the devolved administrations are likely to resist. The result may be a partial repeal of HRA to cover just England and Wales, which will have constitutional implications of its own.
So there are several unknowns—but the worst argument of the human rights lobby is that if the UK ends up withdrawing from the ECHR this is akin to it becoming like Belarus—the only other European country not in the Council of Europe. The ECHR was written in the shadow of fascism in Europe. Its court, and indeed our laws and values have changed in the intervening 65 years.
Constitutions can and should be renewed and refreshed to take account of change. In the UK we have regularly chopped and changed our own arrangements with devolution in the 90s, the settlement in Northern Ireland, having a separate Supreme Court and Department of Justice, and more change now for Scotland and Wales. In 2015 the UK is a different and more liberal place than in 1950—a British Bill of Rights would reflect that change.
