Protecting Human Rights in the UK : is there a Case for Change? By Kirsty Wright

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1 Protecting Human Rights in the UK : is there a Case for Change? By Kirsty Wright This dissemination document relating to the title Protecting Human Rights in the UK : is there a Case for Change? will be submitted online to the Guardian Newspaper Opinion section. This section allows commentators to express their views, subject to clear analysis and evaluation of their topic: posting thorough and often lengthy articles. There are currently few detailed posts discussing the CP proposals, primarily on legal sites; my concern is that these may not be accessible or comprehensible for a lay person. This format has been chosen because it is important to educate the public on the misinformation provided in the Conservatives strategy report, which on face value might appear convincing. The Guardian is the most accessible and appropriate way to present this dissertation to the public because it is a well-regarded mainstream newspaper and posts articles online for free viewing; moreover, the Guardian is known for its left-wing stance, thus its readers are more likely to be receptive to my arguments. Presenting my dissertation findings in this manner is intended to encourage challenge, debate and discussion: educating and stimulating the public is the most effective way to influence government policy, which is inherently more influenced by strong opposition from the electorate than by individual academic criticism. To summarise, this submission to the Guardian acts as a platform to educate the public on the flaws in the Conservatives arguments for HRA repeal, with the overall aim of influencing public opinion in order to pressure the Government to reconsider its proposals.

2 Human Rights Act Opinion The Repeal of the Human Rights Act no Case for Change The Conservatives Case for Change, part of the strategy paper Protecting Human Rights in the UK, argues for repeal of the Human Rights Act; however this misleading and ill-considered paper is in fact a ploy to protect parliamentary sovereignty at the expense of rights in the UK. Kirsty Wright Legal Affairs Friday 13 May GMT. This article is 0 months old. Shares Comments 50 8 t must be questioned whether the Conservatives intentions are truly to protect human rights in the UK or are in fact more concerned with protecting parliamentary sovereignty: the principle that Parliament is sovereign above all other bodies, including the courts. In October 2014 the Conservatives presented their Case for Change for repealing the Human Rights Act 1998 (HRA) in the paper, Protecting Human Rights in the UK. The HRA incorporates the European Convention on Human Rights (ECHR) into UK law. The ECHR was drafted in the aftermath of the Second World War to ensure international unity and maintenance of universal rights: including the right to be free from inhumane or degrading treatment and the right to a private and family life. The Conservatives arguments in the Case for Change are at best unreliable, at worst misleading. This makes it all the more important that the British public is warned about the potential consequences for protection of human rights in the UK. This article reveals the truth behind their arguments so that British Citizens are appropriately informed. So why is this issue current news when the document was published way back in 2014? The answer is simple: the Conservatives intention to repeal the HRA and replace it with a British Bill of Rights was

3 recently confirmed both in their manifesto and in the Queen s speech. More importantly the government is currently developing this document to release further proposals later in the year, thus it is essential that their plans are subject to scrutiny to protect the interests of UK citizens. So what are the problems with the Conservative s Case for Change? Mission Creep The Conservative Party argues that the HRA should be repealed because the European Court of Human Rights (ECtHR) has developed mission creep. By this they mean that the ECtHR has expanded rights into areas that were not originally agreed to when it was first drafted. For instance, the controversial judgment in Hirst that the UK s blanket ban on prisoner voting is unlawful. David Cameron famously stated that the thought of giving prisoners the vote made him feel physically sick, and Parliament also voted overwhelmingly against prisoner voting rights. Clearly the ECtHR has expanded rights beyond what was originally agreed, in fact universal voting rights were specifically rejected in the ECHR drafting negotiations. However, the Conservatives have failed to consider that mission creep is essential for the protection of human rights. Indeed this expansion of rights has not just protected prisoners, but has also outlawed corporal punishment of children and protected homosexual and transsexual rights; groups that were not adequately protected under the original Convention, as these issues were not prevalent at the time of drafting. Without the evolutionary nature of the ECHR, rights protections would be confined to the much narrower interpretations of the 1950s, which were clearly insufficient. Moreover, this evolutionary practice is mirrored in UK common law. The outlawing of marital rape demonstrates how such expansion of rights is necessary to improve protection of rights. By accepting expansion in UK law, the Conservatives issue clearly concerns the fact of a European institution expanding rights contrary to the will of Parliament, rather than because this undermines UK human rights protections. Undermining the role of UK Courts Their second criticism is that the HRA undermines the importance of UK courts. In the past UK courts have interpreted section two as meaning to follow ECtHR Jurisprudence rather than simply to take it into account as stated in the statute. However, this is not the fault of the HRA, rather it is the interpretation taken by some judges: as demonstrated by recent cases that by contrast have departed from decisions taken by the ECtHR. Once again this argument is primarily about parliamentary sovereignty: the HRA increases the role of UK courts, by requiring a more intense form of review, holding the government to account and increasing protection against human rights violations. The Conservatives also once more take issue with the courts finding an inappropriate balance by defending rights of unpopular groups such as suspected terrorists. However, the role of the courts is to protect all individuals regardless of their background: this is essential to ensure that universal human rights are indeed a reality. Thus the Conservatives take issue that UK sovereignty is undermined by courts, not that the role of the courts in protecting human rights is undermined. Far Beyond ECHR Obligations The Conservatives also argue that the HRA goes far beyond the necessary obligations under the ECHR. The HRA by its very existence goes further than required because the ECHR does not specify any particular legal mechanism for protecting Convention rights: thus there is no requirement to incorporate the ECHR into UK law by means of the HRA or any alternative mechanism.

4 However, it is once again shamefully evident that the Conservatives true concern is interference with parliamentary sovereignty. The ECHR is not required to be enshrined in UK law: therefore the Conservatives consider the HRA to be an unnecessary interference with Parliament s sovereign rights; permitting the ECHR to expand rights beyond their originally-agreed meanings and allowing UK courts to question Parliament s sovereign decisions. They quote Germany as an example of how far the HRA extends beyond the ECHR obligations: stating that while German Basic Law (constitutional law) prevails over the ECHR, the HRA provides no such protection in the UK. However, this comparison is fundamentally flawed because German Basic Law is in fact based upon principles of human dignity and only opposes the ECHR where this does not go far enough to protect human rights. By contrast the Conservatives are somewhat selective in their protection of human rights (as evidenced by their criticism of prisoner voting) and oppose the HRA and ECtHR where these conflict with parliamentary sovereignty, irrespective of the implications for human rights. Parliamentary Sovereignty and Democratic Accountability What s more, it is clear that the HRA does not undermine parliamentary sovereignty or democratic accountability. The Conservatives claim the HRA has encouraged courts to go to artificial lengths when interpreting legislation, in order to comply with the ECHR. Although in some cases judges have taken artificial interpretations of legislation to ensure ECHR compliance, it is clear that judicial opinion is mixed, and it is not general practice as the Conservatives suggest. The reality is that there are also judges who disagree with this approach and the courts are ultimately restricted in their powers regarding interpretation: so a complete departure from the intent of a provision would result in judicial vandalism. Where legislation cannot be read as compatible with Convention rights, declarations of incompatibility are issued. However, these declarations do not affect the validity of the legislation, thus while they strongly encourage the government to amend incompatible legislation, Parliament clearly retains its sovereignty. On a final note, although parliamentary sovereignty is important in granting the Government their democratic mandate, this is not a sufficient concern to merit diminishing UK human rights protections in this way. Particularly when the HRA in fact works effectively as a necessary compromise between parliamentary sovereignty and human rights to make the UK both fair and democratic. The HRA has allowed UK citizens to defend their rights in the UK courts without needing to take the long and expensive road to have their cases heard by the ECtHR. The HRA protects ordinary citizens, requiring that public authorities (including the government) treat everyone equally, with fairness, dignity and respect. The British public must be made aware of the flawed nature of the Conservatives arguments, and determine for themselves whether a spurious argument concerning parliamentary sovereignty justifies diminishing important human rights standards in the UK. Indeed, it is our responsibility to exert influence over government policy, as the elected government exists to serve and protect our interests...

5 More news Topics Human Rights Act UK Bill of Rights The Conservatives European Court of Human Rights More