"The UK had human rights before 1998" and other excuses

Last week I wrote a blog post arguing that it could be a disastrous decision for the UK to scrap the Human Rights Act 1998 and withdraw from the European Convention on Human Rights. First, it is not clear how a British Bill of Rights would differ from the Human Rights Act—and we wouldn’t want it to, either, since the rights protected under the European Convention are things most of us would like to enjoy. Second, scrapping the Human Rights Act would mean withdrawing from the European Convention, thereby denying British citizens access to a court of last resort that is available to all other European citizens, and which has been responsible for some hugely important decisions.

Since then, two main points have been raised by my opponents. The first is that “we had human rights before 1998” (so why do we need the Human Rights Act anyway?); the second is that ditching the HRA would not necessarily entail withdrawing from the European Convention. Let me address those two points.

“We had human rights before 1998”

This is true. That’s because we had the European Convention on Human Rights. The UK ratified the Convention when it was first created in 1953, although it resisted the right of British citizens to take cases before the European Court until 1966. Since then, everyone in Britain has been protected by it; laws in Britain had to comply with the European Convention and claims of a violation could be taken to the European Court, just as they can now.

The Articles of the European Convention were incorporated into British law under the Human Rights Act 1998, which actually came into force in 2000. The main effect of this was that cases dealing with violations of human rights could be tried in the British courts and resolved here, before, if necessary, going to Europe. But it did not change Britain’s obligations under the Convention.

The other main piece of legislation that covers human rights in Britain is the Bill of Rights 1689, which covers issues such as prohibition of “cruel and unusual” punishments, and freedom to petition the monarch. But as the date at the end of its title would suggest, its scope is limited. Britain has a long history of human and civil rights legislation stretching right back to the Magna Carta, in addition to case law, but none of it can be compared with the European Convention and the Human Rights Act.

“We could scrap the Human Rights Act without withdrawing from the European Convention”

This is also true, but it would be pretty pointless. Britain was a signatory to the European Convention long before it introduced the HRA. Scrapping it now, without leaving the Convention, would simply revert us to the position pre-2000, which I have described above—our obligations would remain the same, but cases would have to go to the European Court rather than being enforceable by domestic law. Any new British Bill of Rights introduced would have to comply with the Articles of the European Convention, so could not differ in any substantial way from the Human Rights Act—or, if it did, it wouldn’t make much difference since the UK’s position under international law would remain the same.

If the Conservative Party were to achieve its aim it would have to both scrap the HRA and withdraw the UK from the European Convention—an undesirable move. There will, of course, be those who disagree with me and I would encourage them to comment below.