The Human Rights Act repeal: is it really as ludicrous a proposal as it seems?

So, Cameron and his cronies want to scrap the Human Rights Act. My first thought was, blooming heck, never mind no increase in the minimum wage, we’re reintroducing slave labour. But there must be a legitimate point to what the Tories are suggesting: so what is it, and is it worth it?

I’ve had a read of both the Equality and Human Rights Commission report on the Human Rights Act, and the Conservatives’ proposals on changes to the HRA, and here’s what it looks like to me.

The Human Rights Act was introduced in 1998 by Blair and his gang as a way of incorporating the European Convention on Human Rights (which dates back to 1950) into British constitution and parliamentary rule, and uniting with Europe under the European Court of Human Rights (ECtHR). UK lawyers had a major role in forming the Convention; the UK was the first country to ratify the Convention. The rights enshrined in the Convention are admitted by both sides of the debate to be sensible, with with sensible restrictions.

The issue the Conservatives have isn’t with the Convention, or with the rights outlined in the Convention, but with the ECtHR in Strasbourg. The ECtHR is now the ‘high court’ in Europe on human rights, and it sets precedents on interpretation of the Convention that are different to how the UK courts have interpreted the Convention. By setting these precedents, and holding authority on human rights over the UK courts, the ECtHR is able to form very different judgements to those the UK would prefer, and the Tories don’t like it.

However, the Human Rights Act was pretty carefully designed to meet British constitution in terms of parliamentary sovereignty – parliament has the final say. It is not possible for British courts or judges in the British system to declare void any law that breaches the Human Rights Act: that incompatibility has to be presented to parliament to sort out. Ultimately, unlike EU law, which takes precedence if it disagrees with UK law, the Human Rights Act and therefore the implementation of the Convention does not automatically take precedence over other domestic laws: parliament has the final say.

Equally, the HRA only requires UK courts to ‘take into account’ the rulings of the ECtHR, and in fact our own domestic decision is what is binding – and there have been four cases since 2000 where the UK courts have disregarded the decision of the ECtHR.

So, the argument by the Tories, which seems rational and reasoned, and simply wanting more control over our interpretation and implementation of the Convention rather than revoking rights, suddenly seems a bit pointless. We have control. We don’t have to kowtow to Strasbourg. They create legal precedent that is respected in our courts due to the legal process, but we ultimately can make different decisions. The HRA doesn’t impact on our parliamentary sovereignty, and is not binding over the decision of our own courts, as the Tories claim.

Then there is also the problem of devolution. Scotland, Wales and NI all have the Human Rights Act as integral parts of the devolution settlements and constitutional change packages. Repealing the HRA would require amendments to devolution statutes, and may require permission from the devolved states to alter. The Scottish government for one has made it plain that they will use very power they have to oppose the proposals.

So, the HRA works pretty well, meets out constitutional needs, and would cause a lot of problems to change. So why are the Tories so set on this? One word that cropped up a lot in the Tory proposals was “Labour”. It;s “Labour’s Human Rights Act”. Reading between the lines, it sounds like the Tories want a law that says the same thing, does the same thing, doesn’t address any real issues, but is theirs rather than Labour’s, and makes it look like they are being successful in removing Britain from under the thumb of Europe (which, considering the difference between the ECtHR and the EU, seems a bit stupid).

So, should we be worried? The Scottish Government oppose the changes, as does all of the Opposition benches in the Commons, and it seems like the House of Lords does as well. Hopefully, this will be shot down in flames. I mean, there’s plenty of things wrong with our government, our constitution (or lack of one), our electoral processes, our economy and the ablest attitude to the finance sector, and countless other things that the government could be addressing right now, instead of trying to fix something that isn’t broken for the sake of getting their names on it in a high profile way.


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