HRA has ‘been a success on its own terms’ and ‘is an integral part of UK devolution’
The Deputy Head of the University of Exeter Law School Richard Edwards offers his thoughts on proposed changes to the Human Rights Act and replacing it with a new British Bill of Rights.
Without doubt the Cameron Government enjoys a penchant for the unnecessary. We are currently enjoying an unnecessary referendum on British membership of the European Union. Now we face an unnecessary constitutional change for the Lord Chancellor has announced a consultation into scrapping the Human rights Act (1998), and replacing it with a British Bill of Rights. In short, the proposals are intended to water down the legal protection. The justifications for this fundamental change are both wholly unconvincing, and in many senses nonsensical.
The Human Rights Act is already a modest bill of rights. Intended by its framers to provide a domestic means of handling cases that previously only went to Strasbourg, the Act has become a quiet success providing practical justice for British citizens. The HRA does this in a peculiarly British way for while the Act asserts and protect Parliamentary sovereignty it enables the courts to consider the sorts of cases that had to be taken to the European Court in Strasbourg. This careful framed law was not introduced in a hurry. This important constitutional reform had been long in gestation, and been the subject of much debate. Indeed, there had been almost annual attempts for twenty years to incorporate the ECHR in a variety of forms. The Act itself was subject to much debate during its unexceptional passage through Parliament.
Unsurprisingly, the HRA replicates many of the features of the Strasbourg Court such as limited remedies and standing. Throughout this it must be kept in mind that a person can only petition the European Court when their domestic means of redress have been exhausted. There is no appeal. Indeed, the European Court refuses to hear the overwhelming majority of applications. Of those that make it to a full hearing only a handful each year result in an adverse finding by the Court. The European Court is a watchdog that only barks when states have failed to abide by their commitment to protect the rights and freedoms of the ECHR within their domestic legal systems. And while the watchdog can bark, it cannot bite deeply for the remedies for the successful applicant to the Court are limited to a declaration and modest damages. The HRA compliments British membership of the ECHR perfectly, just as its framers intended. There is no case for repeal.
It has been often claimed that the rights protected by the HRA are seen as ‘foreign’. The rights are anything but, with the ECHR providing a distillation of the common law rights and practices. This is not surprisingly given the leading role that British lawyers played in drafted the ECHR. Affirming these rights once more, as the Government proposes to do, is nothing but an act of legislative window dressing.
One of the most heralded features of the new British Bill of Rights will be its intention to make the UK Supreme Court supreme again. Section 2 of the HRA requires the courts to consider the jurisprudence of the European Court where it may be relevant to proceedings before it. It is hardly surprising. The ECHR and its jurisprudence go hand in glove. Section 2 is viewed by the Government as a shackle tying British courts to jurisprudence that is at times inappropriate if not dangerous. But as the Government knows full well in practice British courts have engaged in a constructive dialogue with Strasbourg. In most cases there has been little difficult in considering the jurisprudence of Strasbourg. But there have been cases where the courts consider the rulings of Strasbourg inappropriate they have refused to apply them. It is not clear in this area, as in other, why this change is necessary.
To implement these cosmetic and unnecessary changes the Government proposes to repeal an Act that has not only been a success on its own terms, but also forms an integral part of the various devolution settlements. Arguably without the consent of those devolved nations any changes would be illegitimate and dangerous to the integrity of the Union.
In all this the principal purpose animating the desire to replace the HRA and replace it with a bumper sticker bill of rights is undoubtedly political for there are no serious legal arguments driving this reform. Repealing the HRA is no doubt seen as means of providing possible form of catharsis for the Tory right in the eventuality it loses the Brexit referendum. But in any case the Bill will undoubtedly face a rough legislative passage in the House of Lords. Deservedly so.
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