In his party conference speech, David Cameron promised to repeal the Human Rights Act but his main reason seems to be to avoid compliance with the European Court of Human Rights (ECHR). The cases the PM cited in his speech as justification would have still been directly binding on the UK government even if the HRA had never been introduced. Today, David Cameron has signalled his wish to distance our country from the many achievements of the ECHR, writes Francesca Klug.
Today, the Prime Minister repeated a commitment, first made to his Party in 2006, to repeal the UK’s Human Rights Act (HRA) and replace it with a so-called British Bill of Rights. Until now there has been speculation over what such a Bill of Rights might consist of and how it may differ from the HRA. In his conference speech Chris Grayling, the Justice Secretary, promised to provide more details “shortly,” but the PM has today made crystal clear that the purpose of this putative British Bill of Rights is to avoid compliance with the European Convention on Human Rights (ECHR).
Ratified by the post-war Labour government 60 years ago, the ECHR was championed by Winston Churchill and largely drafted by a future Tory Home Secretary, Sir David Maxwell-Fyfe. It drew its inspiration-and many of its Articles from the UN’s 1948 Universal Declaration of Human Rights which represented a new common ethical framework for a fractured word.
Like any court, the European Court of Human Rights, which enforces the Convention, is not perfect but it is internationally recognised as the most successful product of this post-war vision of a better and fairer world. Its judgments have led to real changes in the lives of men, women and children across Europe, including the banning of corporal punishment, protections for rape and child abuse victims and the overturning of homophobic laws; and that is just here in the UK. There are many justifiable complaints about invasions into our private lives in the modern world, but before the ECHR there was virtually no regulation of state surveillance or right to privacy through either statutes or the common law.
David Cameron has signalled his wish to distance our country from such achievements. Using all the authority of his office, our Prime Minister declared that the “interpretations” of the Court “are frankly wrong”. The cases he cites in his speech as justification for repealing the HRA were all determined by the European Court of Human Rights. In fact, these judgments would have been directly binding on the UK government if the HRA had never been introduced and they will remain so even if the HRA were repealed; provided we are still signed up to the ECHR.
Many campaigners make the point that the HRA is a British bill of rights. Our judges are not bound by the European Court of Human Rights when they interpret the HRA and many people living in the UK have benefited from it without going anywhere near a court. But the purpose of the HRA was to introduce a British bill of rights which is compatible with European and international human rights standards, in line with most democracies, whilst Cameron’s purpose appears to be the opposite.
So whether or not the UK formally withdraws from the ECHR in the future, Cameron is clearly signalling that his so-called British Bill of Rights is aimed at exempting Britain from judgments of the European human rights court that have not found favour with the government. We are told we will find out more from Grayling soon but this bid for ‘British exceptionalism’ is not ultimately sustainable if we do remain signatories to the Convention. Even if it were, it would probably fatally damage the ECHR’s impact on other members of the Council of Europe, from Russia to Turkey, who are equally restless about complying with the judgments of the Court. It is also deeply inconsistent with our repeated admonishments to the rest of the world to abide by international human rights law. Surely this cannot be what the Government means by ‘British values’ that are now required teaching in our schools?
Note: This article gives the views of the author, and not the position of the British Politics and Policy blog, nor of the London School of Economics. Please read our comments policy before posting. Featured image: FishInWater CC BY 2.0
Professor Francesca Klug OBE is a Professorial Research Fellow at the LSE Centre for the Study of Human Rights. She is Director of the Human Rights Futures Project which seeks to explore and analyse the future direction of human rights discourse in the UK and elsewhere. Francesca is also a member of the Advisory Committee for LSE’s Centre for Analysis of Social Exclusion. She is currently on sabbatical working away from the LSE.
Why is the European Convention on Human Rights such a problem for us, and not the other 46 countries who have also signed up to it?
See my commentary:
http://www.humanrights.mythexploder.com
Noting that Norway (another common law country with a strong legal tradition of trial by jury) has not signed on to a United States of Europe with a central government in Brussels, I would venture to speculate many countries who have signed on did so because they lacked strong common law traditions and stood to gain legal justice in relative terms, If such speculation bears truism, then we should expect to find amongst those 46 countries signfiicant discontent amongst those still holding a strong common law tradition.
Bob Williams, I don’t understand your comments. Norway was one of the founder members of the Council of Europe in 1949 and among the first countries to sign up to the European Convention on Human Rights in 1950.
The Council of Europe and the European Union are two entirely separate organisations and entities.
Although Norway is not a member of the European Union, it has agreed to implement all EU legislation regarding the Single Market, and to make a sizeable contribution to the EU budget each year, simply for the right to access free trade with the world’s biggest single economy.
Norway’s relationship with EU is voluntary – “it has agreed” and “has adopted”. Membership in the EU, however, threatens such sovereignty. At the end of the day, one must ask – “Do I trust Brussels to safeguard my liberties and inalienable rights?”. I don’t. When government is taken from the local and placed afar, voice in an afar government will be limited to those with very deep pockets (i.e. corporations). Electoral politics in a Brussels based electoral system will become as expensive as U.S. politics at the federal level, requiring millions in campaign contributions for a candidate to campaign successfully. Despite professed promises from Brussels to protect human rights, I trust the historical record of the British common law and parliamentary system over a Brussels based corporacy.
No country was forced to join the European Union and all countries are free to leave. The European Union is one of the world’s biggest democracies. The European Parliament is democratically elected and decides nearly all EU laws, and has the democratic power to dismiss the entire Commission of the European Union. No democracy is perfect; here in the UK we still have an unelected House of Lords and an unelected monarchy. If, however, you’re suggesting democracy could be improved, I wholeheartedly agree – for both the UK and the EU.
I think it’s more helpful to discuss specific examples of how our Human Rights Act has helped British citizens:
* The Human Rights Act has brought to account UK police for failing to investigate human trafficking and rape cases.
* Thanks to the Human Rights Act, UK law was changed to prevent rape victims from being cross-examined by their attacker.
* It’s because of the Human Rights Act that the right was established in the UK for an independent investigation to take place following a death in prison.
* Human rights laws have also helped patients gain to access life-saving drugs and held hospitals to account when failures in mental-health care has directly led to suicide.
* In the Mid Staffordshire hospital scandal, 100 claims were made invoking the Human Rights Act claiming that gross or degrading treatment of patients, mostly elderly, had caused or hastened their deaths.
* Human Rights laws have also helped to establish that failing to properly equip British soldiers when on active duty abroad was a breach of their human rights.
I am not convinced that these or similar cases would have prevailed without our Human Rights Act; I certainly don’t think they would have got anywhere under our “British common law” or say the 1689 Bill of Rights.
And the examples above are just that – some examples. There are many other cases where British people have needed our Human Rights Act to protect them against the excesses or failures of the State.
Furthermore, it was our Parliamentary system that agreed to join the European Convention on Human Rights and the European Union (EEC) and to adopt the Human Rights Act. If it is the democratic will of the people, then of course anything that Parliament agreed in the past can be undone in the future: proof positive that our Parliament still rules supreme.
PS As a member of the EEA, Norway has adopted over 10,000 EU laws without any say in their creation (source: Nationen 25 September 2014)
Is this proposed Bill of Rights not just about spiking the guns of UKIP. Scotland, Catalonia, Ukraine: are these separatist movements not all symptoms of the lack of a sound social and economic ideology that can bind the countries of Europe and indeed the world together so the real problems of global warming and looming fossil fuel and hydrocarbon exhaustion can be effectively addressed. Visit http://www.rational.org.uk for latest and to help with campaign
On the face of Cameron’s announcement, it does appear that his aim is to protect British liberties and perhaps even British sovereignty from a European Union that is, at times, in conflict with both. A review of the American case for a Bill of Rights, however, suggests the possibility that Cameron’s real motive might be a hidden one – to delimit British liberties to only those specifically spelled out in a written Bill of Rights. The Yankee revolutionaries saw many of their English liberties evaporate under their fledging nation’s second constitution, which required ten amendments labelled as a ‘Bill of Rights’ to secure passage through the states’ legislatures. To paraphrase the Ninth Amendment – ‘Just because we have listed some of our rights in the previous eight amendments does not mean those are the only rights we retain, we still retain all our other rights not listed here that we exercised under the Articles of Confederation and common law’. Unfortunately, the historical record since then shows clearly that the Ninth Amendment became what Randy Barnett has termed ‘the forgotten amendment’. The courts subsequently recognised only those rights specifically listed in the first eight amendments (the tenth amendment pertained to states’ rights).