Ghap Shap: For and Against the Human Rights Act 1988
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The Human Rights Act 1998 (also known as the Act or the HRA) came into force in the United Kingdom in October 2000. It is composed of a series of sections that have the effect of codifying the protections in the European Convention on Human Rights into UK law.
All public bodies (such as courts, police, local governments, hospitals, publicly funded schools, and others) and other bodies carrying out public functions have to comply with the Convention rights.
This means, among other things, that individuals can take human rights cases in domestic courts; they no longer have to go to Strasbourg to argue their case in the European Court of Human Rights. The Act sets out the fundamental rights and freedoms that individuals in the UK have access to.
The government announced in the Queen’s Speech that it intends to bring forward proposals for a British Bill of Rights to replace the Human Rights Act.
We spoke to two experts to give us their arguments for and against the scrapping of the HRA and replacing it with a Bill of Rights.
Kamal Uddin Ali
Kamal Uddin Ali is a solicitor specialising in immigration and human rights law. He has a wealth of experience in advising and assisting vulnerable asylum seekers, foreign national oﬀ enders and other migrants as well as High Net Worth investors. Kamal is a passionate advocate for human rights and this led him to join the Liberal Democrats. He stood for the Party in local elections in Tower Hamlets Whitechapel ward in 2010.
Kamal argues why we need the HRA. Here are his views
Why we need the Human Rights Act (HRA)
The European Convention on Human Rights (ECHR) is an international treaty signed by many nations including Britain in 1948 in order to secure basic rights for its citizens. Many rights are protected such as the right to life, prohibition of torture, freedom from slavery under right to liberty.
Other rights include a right to a fair trial, prohibition of retroactive criminal legislation; right to an effective legal remedy. Personal life rights include the right to private and family life; freedom of thought; the right to marry and freedom from discrimination. Rights to promote communication and participation in society include freedom of expression and freedom of assembly. There are additional rights which are included in protocols to the Convention, which evolved over time.
After 50 years the ECHR was incorporated into UK law when the Human Rights Act 1998 (HRA) came into effect in 2000. This did not create any new human rights laws but effectively incorporated ECHR into domestic UK law. The Act gives every British Citizen their rights and responsibilities and public services are required to respect human rights at every level.
As the UK does not have a written Constitution, it was hoped that the HRA will become the first Bill of Rights for both UK citizens and all peoples living in Britain. It was considered to be a new symbol
that would unite people under one common vision; that of human rights.
The Tories in recent years and since forming a majority government in May 2015, plan to scrap the HRA and replace this with a British Bill of Rights. At present, the Tories have put their plans on hold pending further consultations.
According to Sir Keir Starmer, the MP for Holborn and St. Pancras, “The HRA contains universal rights that are approved by the world.”
HRA has been used by vulnerable people in the UK such as the disabled, the mentally ill, the elderly and those in residential care. It has protected the rights of asylum seekers and irregular migrants.
The Tories have justified their reasons for scrapping the HRA
by saying that it protects foreign criminals and terrorists and undermines the government’s powers to deport. The Tories have sensationalised stories to create a culture of fear within our society. As a consequence, the government is falsely leading us to believe that we are giving away our basic rights in return for greater security.
Britain has a proud history of promoting human rights at home and abroad. Scrapping the HRA would mean removing the universality of rights and this would have dangerous consequences. According to Shami Chakrabarti of Liberty, citizens’ rights shall be reduced to mere privileges.
The Tories want to scrap the HRA simply because it currently prevents them from interfering with our human rights. The Tories have already indicated their desire to exclude certain groups of people from human rights protection.
They criticise the decision of the Strasbourg judges as ‘bizarre’ which undermines parliamentary sovereignty. However, the truth is that the HRA is the best model which will protect our human rights and give us the right to hold governments accountable when they interfere with our rights. If the HRA were scrapped we would face obstacles in challenging our government for interfering with our rights.
The more people understand about the HRA, the more they will appreciate and understand what they have to lose. It has never been a more important time to educate ourselves about the government plans to scrap the HRA and what this means for everyone. It is also important to lobby our MPs and actively engage in campaigning to save the HRA.
Ahmedur is a Solicitor specialising in commercial property and regularly advises Directors on corporate governance issues. He joined the Conservative Party in 2009 and has stood as a council candidate in the London Borough of Newham. During the 2015 General Election, he was the Political Agent to a Parliamentary candidate. He is also an Executive Member of the Conservative Muslim Forum (CMF) and is also listed in the “Brightest 100” – a publication highlighting the 100 most
inﬂuential British Bangladeshis in the UK.
Ahmedur argues against the HRA. Here is what he has to say:
From the Human Rights Act to a Bill of Rights and Responsibilities
The Human Rights Act (1998) came into force in October 2000 and allows UK nationals to rely upon the rights contained in the European Convention on Human Rights 1951
(European Convention) in UK Courts. Repealing the Act does not affect the UK’s obligation under the European Convention – this is an international treaty which the UK helped draft and was the first nation to ratify it, meaning we promised to respect the judgment of the European Court of Human Rights (ECtHR) in Strasbourg.
The Act has been controversial. It is widely misunderstood by the public and applied by public authorities
in an unbalanced way. And it’s not difficult to see why. Strasbourg has used the European Convention as
a “living instrument” which evolves and adapts leading to interpretations which had not been contemplated in the 1950’s. The problem is, the Act requires the UK to take into account rulings of the ECtHR, so that the meaning of the Convention rights given in Strasbourg apply to our laws. This has led to some problematic and controversial rulings from Strasbourg applying to our national law, undermining Parliamentary sovereignty and, in turn, undermining democratic accountability to the public.
However, perhaps the most controversial part of the Act is its requirement for the UK Courts to give effect to primary legislation in a way that is compatible with the European Convention “so far as it is possible to do so”. In practice this has led to judges artificially stretching the meaning of primary legislation. For example, an examination of whether a certain act by a public authority is ‘proportionate’ to its objectives, requires a political evaluation of that policy. The courts have therefore become “activist” in dealing with what are effectively political questions – a domain preserved for Parliament, not only under s.3(2)(b) and (c) of the Act itself, but also under the “separation of powers” doctrine which underlines the UK’s unwritten (or as the author would argue, uncodified) constitution. Where primary legislation cannot be interpreted in a way compatible with the European Convention, the courts can make a declaration of incompatibility. This has no binding legal effect and, in itself does not remedy the breach.
So, let’s be clear on what’s being proposed. The Conservative’s pledge is to repeal the Human Rights Act and replace it with a Bill of Rights and Responsibilities where Parliament is the ultimate source of legal authority and the UK courts supreme in the interpretation of the law.
The new Bill will enshrine the original European Convention into primary legislation, with its rights and responsibilities given clearer definitions. The European Convention imposes an obligation to secure
the rights and freedoms in the convention for its citizens and to provide an effective remedy where those rights and freedoms have been breached. There is no requirement to take into account rulings from the ECtHR. Therefore, the Bill will remove the requirement of domestic courts to take into account Strasbourg’s rulings. This doesn’t mean they couldn’t or wouldn’t – often human rights cases from abroad influence the court, but the UK courts will no longer be bound to follow Strasbourg’s jurisprudence. Any important advancements in human rights will be put to a vote in Parliament to see if primary legislation should to be amended.
The Bill will be open to public consultation later this year. I hope all sides of the argument will take the opportunity to take part in the UK’s commitment to human rights.
As for me, the HRA started out to achieve a noble cause, but failed. Replacing such a system is not
an attack on human rights but a criticism of the way it applies. To defend the rights and freedoms of the individual with a clear, coherent set of rights and responsibilities, but in a manner which does not undermine British democracy is too a noble cause.
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