Aug 272011
 

I will be blogging about the debate over the fate of the Human Rights Act and the possibility of a new Bill of Rights. This article is an initial “Baseline” on which my analysis and opinions will be built.

I have been writing about relevant worldwide declarations, treaties, and conventions, including declarations of human rights, for several years, and I am a paid-up member of Liberty, the human rights organisation.

(Many references here are to Wikipedia. Not because it is definitive, but because it provides good-enough summaries and extensive references to definitive documents, enabling me to avoid too much duplication of information that easy to find).

Constitution

The UK doesn’t have a single coherent document-suite corresponding to the Constitution of some other nations. However, it does have charters and other documents going back to 1215 which collectively perform a similar function.

Human Rights Act

Origins

The Human Rights Act 1998 is based on the European Convention on Human Rights, judged by the European Court of Human Rights.  These are assets of the Council of Europe. The UK was a founder-member of the Council of Europe, (it was inspired by Winston Churchill), and helped draft the Convention, which borrowed heavily from the Universal Declaration of Human Rights. The Human Rights Act doesn’t add extra rights, but enables rights that the UK has already committed to (by belonging to the Council of Europe) to be judged in UK courts rather than Strasbourg, vastly improving the cost and time incurred.

Europe

The Council of Europe long preceded the European Union and its predecessors, and is a separate organisation. Neither the European Convention on Human Rights nor the Human Rights Act are based on the (later) Charter of Fundamental Rights of the European Union. The European Court of Human Rights is different from the (later) European Court of Justice belonging to the European Union.

Every member of the European Union must  first belong to the Council of Europe. The UK could not cease to be bound by the European Convention on Human Rights without leaving the EU. Opting-out of the Council of Europe would send an unwelcome message to the world about the UK’s attitude to human rights. It is safe to assume that neither of these will happen in the foreseeable future.

The rights under the Act
Right to life Prohibition of torture
Prohibition of slavery and forced labour Right to liberty and security
Right to a fair trial No punishment without law
Right to respect for private and family life Freedom of thought, conscience and religion
Freedom of expression Freedom of assembly and association
Right to marry Prohibition of discrimination
Prohibition of abuse of rights Limitation on use of restrictions on rights
Protection of property Right to education
Right to free elections
Problems

No legislation is perfect, and no legislation is perfectly implemented, and the Human Rights Act is no exception. (Neither, of course, would a Bill of Rights be perfect). What are the types of problem that hit the headlines? (Apart from “it’s from Europe so it must be bad”!)

A typical problem is that a relatively small number of people benefit significantly even though some people are furious that they benefited or lots of people think they shouldn’t have benefited. (For example, they avoid deportation). Or a relatively large number of people gain a small benefit, with similar objections. (For example, prisoners may get the vote). Typically, the rights of the general population are hardy impacted at all.

I feel similar emotional responses in these cases! The responses are similar to those I feel when someone I believe is guilty isn’t found guilty in court, because the case hasn’t been made or there is a technical issue. And I am (nearly always) totally wrong to think that! And why should I be upset, when it has actually made no practical difference to my life? These cases disrupt our sense of “what is fair”. And I long ago realised that I typically haven’t got a sound view of “what is fair”! The harsh fact is that victims are typically the worst people to make a judgement in these cases, and time and clear heads are needed to start thinking about the future (which can be improved), instead the past (which can’t).

In some of these cases, the judgement that we don’t like is “playing safe”. We don’t know what would happen if those people were deported, and we suspect they wouldn’t suffer as claimed. But sometimes we are wrong, and the consequences are bad. If we are truly enlightened, we need to try empathy. Next time it may be one of us in a reverse situation.

Further reading

The Big Question: What is the Human Rights Act, and why is it being vilified?
Enough poison about the Human Rights Act. It is Churchill’s legacy
Churchill’s Legacy: The Conservative Case for the Human Rights Act, Jesse Norman and Peter Oborne (PDF book)
Human Rights – once more with feeling
The Times/Matrix debate on the Human Rights Act provokes rousing rhetoric
Human beings need human rights – in Britain as well as Libya

Bill of Rights

Examples

England (and by extension other parts of the UK) already has a Bill of Rights. What is being proposed is a more up-to-date one.

All parties favour having a Bill of Rights, but none of them appears to have a firm proposal about what should be in it. They certainly don’t agree with one-another about it. The concept appears to be a “bucket” into which everyone can toss their speculative solutions to their perceived problems with “human rights” in general.

The USA has a Bill of Rights: the first 10 amendments to the Constitution.  The US Supreme Court is the final arbiter of what is or is not a right, based on the various interpretations of the 9 judges. Many judgements are contentious, and presidents hope to leave a legacy for future decisions by appointing judges aligned with their own values. Arguably, the disagreements and debates over the USA Bill of Rights make the criticisms of our Human Rights Act tiny in comparison!

Any expectation that a UK Bill of Rights would eliminate the sort of disputes seen at the moment is ridiculous!

Further reading

I haven’t studied this enough to provide any analysis. (But I note that some suggestions add “duties” to “rights”. While I accept that someone else’s right implies that I should not actively thwart that right, I am suspicious about explicit duties beyond this. I wonder if some people are more interested in imposing duties than in supporting rights?)

Should the UK have a Bill of Rights?
A new Bill of Rights for Britain?
Background to proposals for a British Bill of Rights and Duties (PDF)
Commission on a Bill of Rights
Only a bill of rights can save our liberties
Britain should have Bill of Rights, say MPs
HC 1049 UK Bill of Rights Commission
Do we need a UK Bill of Rights?

Guidelines

  • Ask yourself which of the “Rights under the Act” (above) you would be happy to give up for yourself.
  • By default, do not believe what the Telegraph or the Daily Mail says about human rights. Check via independent sources whether they are telling the truth. (The same probably applies to the Sun).
  • If a news source says that someone is having to act in some unreasonable way “because of human rights”, check whether that is the real reason. Often, it is a catch-all excuse used even where the action is not directed by the Human Rights Act.
  • If an unreasonable case really is being brought with reference to the Human Rights Act, check after the case has been heard whether it succeeded. Typically, unreasonable cases get thrown out because they are not in practice covered by the Act. (The news sources are unlikely to give equal prominence to the rejection, leaving people with the false impression that there was a valid case under the Act).
  • When journalists protect their sources, they should offer thanks to the Human Rights Act that they can do so.
  • Study the myths about the Act. This may undermine what you thought you knew about it.

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