Driven by data; ridden with liberty.
The Conservative manifesto promises to “scrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britain”. The full commitments, rather than the crude summary, are more nuanced:
We have stopped prisoners from having the vote, and have deported suspected terrorists such as Abu Qatada, despite all the problems created by Labour’s human rights laws. The next Conservative Government will scrap the Human Rights Act, and introduce a British Bill of Rights. This will break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK.
After a world was ravaged by tyranny, the United Nations issued the Universal Declaration of Human Rights in 1948. The drafting committee of the Universal Declaration included Britain’s Charles Dukes. Regional courts were then entrusted hold countries to account, with nations imputing this declaration into their laws. Drafted in 1950, the European Convention on Human Rights (ECHR) established the European Court of Human Rights (ECtHR). The Human Rights Act 1998 (HRA) fulfilled this vision, incorporating the European Convention into law.
The Declaration, the European Convention and the Human Rights Act protect many aspects of human liberty and dignity, which underlie our civilisation: the right to life, the abolition of slavery, the end to torture and degrading treatment, equality before the law, the right to a fair and public trial, innocence before proven guilty, the right to asylum from persecution, the freedom of association, the freedom of speech, the freedom of religion, among others.
The HRA means that, when the Convention is potentially breached, the case can be heard in British courts, rather than waiting to go the ECtHR in Strasbourg. This Act does not inhibit parliamentary sovereignty. Courts “may quash or disapply subordinate legislation (such as Regulations or Orders)” if they transgress the European Convention. However, for primary legislatio, such as Acts of Parliament, that conflicts with the Human Rights Act, courts can makes declarations of incompatibility. It is then left to ministers, by their volition, to make remedial orders to amend the legislation, ensuring that it conforms with the Convention Rights. British courts must take account of Strasbourg judgments in their interpretations of the European Convention.
The Conservatives intend to repeal the Human Rights Act and institute a “British Bill of Rights”. The aim is that “foreign criminals can be more easily deported from Britain”. If a foreigner does not possess a right, then it is not a human right, it is a right of citizens. If a criminal does not possess a right, then it is not a human right, it is a right of law-abiders. From vilest criminality to highest nobility, from first breath to last gasp, human rights apply to everyone. Otherwise, they are not human rights, they are legal privileges upon which only some people are bestowed.
The 1998 Act is part of the Scottish and Welsh devolution settlements, and as lawyer Philippe Sands highlights, “the Good Friday agreement guarantees that Britain will incorporate the European convention into Northern Ireland’s law”. Uprooting the Human Rights Act could fracture our nation.
Breaking the “formal link” between British Courts and the ECtHR will mean that, as prior to 1998, citizens will have to go to the Strasbourg Court if their case will not heard in Britain.
A rose by any other name, the Human Rights Act is a British Bill of Rights. This Act could be enhanced, as to strengthen these basic protections, particularly for freedom of speech.