A strong case for the Human Rights Act

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The Human Rights Act 1998 (HRA) is a straightforward statute, that works by allowing individuals in the UK to enforce their rights in their local courts.  The Act makes available a remedy for breach of a Convention right without the need to go to the European Court of Human Rights in Strasbourg.

It was designed to supplement the European Convention on Human Rights (ECHR). It also requires public authorities to respect the rights of those they serve. As a part of Labour’s 1997 commitment to a new constitutional settlement, it represented a new way of thinking about law, politics and the relationship between public authorities and individuals.

The Act provides that it is unlawful for a public authority to act in such a way that contravenes Convention rights. Section 7 of the HRA enables any person with standing to raise an action against a public authority which has acted or proposes to act in such a way that contravenes the Convention. A person will have standing to do so provided they would satisfy the “victim test” stipulated by Article 34 of the Convention. This is a more rigorous standard than is ordinarily applied to standing in English (although not Scottish) judicial review.

However, the Act also provides a defence for public authorities if their Convention violating act is in pursuance of a mandatory obligation imposed upon them by Westminster primary legislation.

The rights protected by the Act are quite simple. They include the right to life, liberty and the right to a fair trial; protection from torture and ill-treatment; freedom of speech, thought, religion, conscience and assembly; the right to free elections; the right to fair access to the country’s education system; the right to marry and an overarching right not to be discriminated against. Cameron has argued that it should be repealed since just 10 years after its implementation (the HRA came into force in October 2000) … so that he can pass another Act.

No other country has proposed de-incorporating a human rights treaty from its law so that it can introduce a Bill of Rights. The truly disturbing aspect of Cameron’s Bill of Rights pledge is that rather than manifestly building on the HRA, it’s predicated on its denigration and repeal. One has to wonder what his discomfort with the HRA is. The Act, after all, goes towards protecting the vulnerable from neglect of duty and abuse of power.

Do you really believe Cameron (Or Farage, who also states that he intends to repeal the HRA, given the opportunity) is more likely to build on existing rights and freedoms or to destroy them? The front page agendas of the Sun and Daily Mail indicate the latter. The Tories have hijacked the language of a Bill of Rights in order to weaken them.

History

The rights protected by the HRA are drawn from the 1950 European convention on human rights, which was a way of ensuring that we never again witness the full horrors of the second world war, and overwhelmingly, one of the greatest stains on the conscience of humanity – the Holocaust. Winston Churchill was one of the main drivers of the Convention, it was largely drafted by UK lawyers and the UK was one of the first countries to ratify it in 1951.

This was the establishing of a simple set of minimum standards of decency for humankind to hold onto for the future. The European Convention on Human Rights and Fundamental Freedoms (ECHR) was drafted as a lasting legacy of the struggle against fascism and totalitarianism, as well as the atrocities of world war two.

Yet the HRA is quite often portrayed by the Right as a party political measure. However, whilst the Human Rights Act is ultimately recognised as one of the greatest legacies of Labour in government, Cameron seems oblivious to the fact that Human Rights are not objects to be bartered away. They arose from struggles that were begun long ago by past generations who gave their lives for these rights to be enshrined in our laws.

The position of the Conservative party was clarified by Chris Grayling, the justice secretary, when he revealed late last year that “replacement” of the HRA would be part of the Tory election campaign. The only thing that has held the Tories in check during this government has been the opposition from Liberal Democrats to any diluting of the Act or to our commitment to the European Convention. The Labour Party, has been equally consistently adamant that it intends to retain the HRA, and to remain committed to the Convention.

The outcome of the local and European elections has now intensified the debate. The UKIP challenge will no doubt push the Tories even further right: to further distance itself from the obligations under the Convention, which is frequently wrongly described by Tories and the press as an EU treaty.

When the decision to give domestic effect to the European Convention on Human Rights took place in Northern Ireland, the negotiators to the Good Friday agreement made sure that this was included. The Labour Government agreed to incorporate the Convention through an international treaty with the Government of the Republic of Ireland on the basis of a quid pro quo. The Human Rights Act was a crucial part of the peace accord.

The HRA is misunderstood and very often misrepresented by right-wing politicians and the media, it has been variously portrayed as a threat to parliamentary sovereignty, a European imposition, and a “villain’s charter.” It is in reality, however, a victim’s charter. It provides a vital framework for such debate amongst people of good will.

Tory ministers are a major source of national embarrassment when they denounce the European Court of Human Rights whilst instructing the rest of the world, including other European states, to respect our collective international human rights obligations and “the rule of law.” Human Rights legislation exists throughout the free world. Free speech, the right to a fair trial, respect for private life and the prohibition on torture are values which distinguish democratic societies from fascist states.

An inquiry led by the Equality and Human Rights Commission demonstrated that the HRA has been effective in influencing the everyday practice and procedure of a range of public authorities, from the police to social workers, care homes to mental health hospitals. The HRA does not set criminals above the victim, despite the media myths. Nearly all of the rights are informed and qualified by the need for public protection, and many human rights cases have involved  victims challenging governments for gross failures to protect them.

These are positive developments which UKIP and the Tories seek to overturn.

The case for the HRA is a strong one. It is a moral case based not only on learning from the history of some of the worst violations of human rights before and during the second world war, but also from recent history – the here and now. If a new settlement based on social inclusion and greater equality is to be reached, the HRA should not be viewed suspiciously, as a burden, but promoted as an instrument of equality, social cohesion and public purpose. It is expected of a democratic government to improve the understanding and application of the Act. That is an international expectation, also.

There is no justification for editing or repealing the Act itself, that would make Britain the first European country to regress in the level and degree of our human rights protection. It is through times of recession and times of affluence alike that our rights ought to be the foundation of our society, upon which the Magna Carta, the Equality Act and the Human Rights Act were built – protecting vulnerable citizens from the powerful and ensuring those who govern are accountable to the rule of law.

Observation of human rights distinguishes democratic leaders from dictators and despots. Human Rights are the bedrock of our democracy, they are universal, and are a reflection of a society’s and a governments’ recognition of the equal worth of every citizens’ life.

Worth reading:

The protection of freedom under the Human Rights Act: some illustrations

A journalist’s guide to the Human Rights Act

 

68196_116423458427191_5364492_nPicture courtesy of Robert Livingstone 

64 thoughts on “A strong case for the Human Rights Act

  1. Another fine piece.
    It is clear that the Tories idea would be to replace our Human Rights with a ‘Bill or Wrongs’.with emphasis on Citizens’ Obligations towards the State.
    Back during the Major years, there was a lot of talk of a ‘Return to Victorian Values’.
    Cameron and his Henchmen have already achieved that: Workfare is the modern equivalent of the Workhouses, Only the very wealthy can afford justice or a Roof over their heads.
    They are not content with ‘Victorian Values’, they want nothing less than a return to Serfdom for the masses. They want Noblesse Oblige, without the ‘Oblige’
    Ny their actions, they have shown themselves as totally unsuitable to hold any form of power and if anything, they should be appearing at the Hague on charges of ‘Crimes against Humanity’

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    1. Thank you.
      Return to ‘Victorian Values’. – yes, ‘The rich man at his Castle, the poor man at his gate…’ and many Tories, such as Osborne and Gove are Victoriaphiles, too. Neofeudal authoritarians – and yes, ‘Noblesse Oblige, without the ‘Oblige’’. Spot on Colin, I agree with all you say here.

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    1. The EU and The ECHR are two entirely different organisations. The right wing like neither. They – and the right wing press – deliberately blur the boundaries between the EU and the ECHR. But I think that they see them as the same in terms of an imposing international scrutiny, and a democratic framework on the british govt so they have to have a degree of ‘accountability’ internationally. They don’t like that, the Tories.

      But it is the case that the member states of the EU agreed that no state would be admitted to membership of the EU unless it accepted the fundamental principles of the European Convention on Human Rights and agreed to declare itself bound by it. So opting out of the convention would likely exclude us from the EU. And here we are, with a party of authoritarians in charge

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  2. Reblogged this on amnesiaclinic and commented:
    An excellent, clear treatment of what the tories are doing when they say they want Britain to withdraw from the European Convention on Human Rights and the serious implications for ordinary people. Factor in recent proposals for assisted dying, the loss of internet freedom and thought and you have a very ugly picture.

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  3. So bloody scary when you think about it. People need to be made aware of the difference between the two. The tories and the media are deliberately misleading people – isn’t there a law against that?

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  4. A superlative and cogent piece. I’ve stated on several occasions that Britain was becoming a retrograde society and a frequent violator of human rights.

    Ever since I began campaigning, I’ve been warning that the Tories were hell-bent on withdrawing from the ECHR, which would seriously threaten the human rights of sick and disabled people.

    Even during the Welfare Reform Bill debates, Lord Freud expressed the government’s desire to circumvent Strasbourg because of adverse rulings.

    The Tories want all their options on the table (even the most extreme) heading into the next election because of the far-right appeal and popularity of the UKIP.

    Liked by 1 person

    1. Thank you Samuel. I am hoping that people can see the profoundly terrifying implications of this insanity from an authoritarian government.

      Like you, I saw in 2012, when the welfare “reform” bill was forced through parliament, despite widespread opposition and fears, with Cameron citing “financial privilege” to get his own way, how the ill wind was blowing. The NHS risk register – ordered to be released in 2012 by tribunal, for the public to see – still hasn’t been released.

      This is a carefully planned and co-ordinated attack on our liberties and rights. Legal Aid has pretty much gone, so people seeking redress for the State HR contraventions due to the “reforms” or the adverse effects of the Tory Health Bill, or example, will find it almost impossible to challenge the state. Our ECHR funding here has been severely cut, and the backlog of cases is huge, massive shortage of staff.

      We have the repressive Gagging Act, the oppressive stifling of our unions, the list of nightmarish dystopic policies is endless. And all planned and co-ordinated.

      I agree that UKIP have nudged the Tories and our set the right wing media agenda further right, but these neofeudalists are stand alone authoritarians and have been from the start.

      I’m thinking of Allport’s ladder, and wondering just how far the public are prepared to have their boundaries of decency and civilisation pushed. People are dying now.

      Evil is that which goes against the tide of [human] evolution. The Tories lose a decade a day, unravelling our social learning and history and making us unremember that we were once a first world liberal democracy. That we were civilised.

      I am afraid.

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  5. human rights act is part of the un constitution and in no part should withdrawl from europe affect it if this is so the act was signed in the un not europe as if you read the act it covers all un states europe is part of the un as far as i am aware.rights to benefits and social housing are part of the act and i think that uk common law has indeed breached the act and that these laws should be disolved if it can be proven beyond doubt that many have suffered as a consequence.

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    1. The HR Act consolidated the ECHR/ Universal Declaration. One of its purposes was that we could use our own courts to uphold HR law.

      In 1948, the General Assembly adopted a Universal Declaration of Human Rights, drafted by a committee headed by Franklin D. Roosevelt’s widow, Eleanor, and including the French lawyer René Cassin. The document proclaims basic civil, political, and economic rights common to all human beings, though its effectiveness toward achieving these ends has been disputed since its drafting.

      The Declaration serves as a “common standard of achievement for all peoples and all nations” rather than a legally binding document, but it has become the basis of two binding treaties, the 1966 International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

      In practice, the UN is unable to take significant action against human rights abuses without a Security Council resolution, though it does substantial work in investigating and reporting abuses.

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  6. Reblogged this on Beastrabban’s Weblog and commented:
    Kitty here shows that the Human Rights Act, far from being a European imposition, was the natural attempt by the peoples of Europe after the Second World War to make sure that regimes such as Nazi Germany ever arose again. One of its chief architects was that great Conservative icon, Winston Churchill. The law exists to protect people from the type of discrimination and persecution enacted in the Fascist states. Cameron and Farage wish to repeal it, and replace it with a bill of rights, which will probably be weaker than the legislation it replaces. It also shows how hypocritical the Tories are to reject such legislation, and then lecture the world about the need for international order and the rule of law. Actually, I suspect here the Tories have just taken a leaf out from Right-wing American particularism. The American Right also believes they have a right to lecture the world on the rule of law. They just don’t believe that America should be bound by anyone else’s. Ditto Cameron and Farage, as they goose step their way to the new, non-inclusive volksgemeinschaft. And just to be clear, the Nazis, like the Tories, also used to be bang on about preserving freedom as well, even when denying it to their people.

    Liked by 1 person

  7. Good that you used the word “remedy” near the beginning. Did you get that from the list of complaint – types considered by the ECHR? I noticed it there several years ago. The Court lists somerhing like “effective remedy,” as something to be provided, or is withheld. I do not remember. It is general, not just medical. You can complain about not being given an effective remedy for just about anything. It seems to be a good rubric for filing a formal complain at the Court, even if the HRA is abolished. It might well be more difficult though.

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  8. We have allowed this bunch of psychopaths to destroy
    The NHS the welfare state victimize the sick and disabled
    Sell off our public services for profit cut help and support for
    The elderly in their homes so they have no alternative then to
    End up in A&E departments then they cannot be discharged because
    This government has cut the district nurses and home help they need
    So they have to stay in hospital blocking beds
    And yes next on their list is to make sure we have no basic human
    Rights you think things are bad now we are heading for hell on earth
    No ifs no buts by any means this lot must be out in May never to return

    Liked by 1 person

  9. There are no Human Rights in this country for the ordinary person. I have been trying to get a human rights lawyer for five years. As I said to Maria Millar, you only get a access to human rights if you are a prisoner in jail. Then they have to give you a lawyer. But if you have a case against the courts of this very undemocratic Country, then forget it? Make sure you read this website: ‘www.alice-through-the-broken.weebly.com

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