Should we repeal the Human Rights Act?
When I was shadow attorney general, I recommended – and my party accepted – that we repeal the Human Rights Act (HRA) 1998. The Act does not protect British people from harm, let alone their liberties. It should also not be up to unelected judges to decide on what amounts to policy matters in the British national interest. My view of repeal was instituted as Conservative Party policy, which continued through to the last election.
The Conservative manifesto, on which all Conservative MPs campaigned at the 2010 general election, stated: “To protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights.” The prime minister himself repeatedly said that he thoroughly endorsed the pledge.
The replacement of the HRA was then relegated to a review under the coalition agreement. Nick Clegg reversed the real Conservative position: the HRA will not be repealed, and there will be no proper reform of our position towards the Act, which incorporated the European Convention on Human Rights (ECHR) into UK law.
Nick Clegg had already got his way when the coalition agreement stated: “We will establish a commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties.”
The Bill of Rights Commission has now been created, and has lost credibility because many of its members overtly support the whole structure of the ECHR and the HRA. These include Lord Lester, a QC who campaigned for 30 years for the ECHR to be incorporated in British law, and also Labour peer and human rights lawyer Baroness Kennedy. Although a few members have not been totally absorbed into the human rights legislation DNA, the commission seriously lacks balance. In short, the current position is that the coalition government is unwilling to deal with the Act, and failing to deal with the ECHR.
Last year, over 300 foreign prisoners – including killers – successfully avoided deportation by the Home Office after claiming they have a human right to a ‘family life’ in Britain, under Article 8 of the HRA. The sloppy wording of the outdated Convention, as understood through the Act, has led to the gagging of the press, gagging of freedom of speech and interference in privacy law, among other difficulties.
The HRA undermines the best traditions of British freedoms. British constitutional history is being written out as the Convention is enforced, and we must seek to protect our Parliament if we are not going to allow our constitution to become extinct.
In dealing with terrorists, we had control orders and counter-terrorist measures that failed, because we had bound our Parliament under the terms of the HRA and the ECHR. I have proposed a Prevention of Terrorism Bill, which would unwind the application of the Act and give us a proper terrorism law, ruling out the application of the HRA 1998 while insisting on habeas corpus, due process and fair trial on one hand, and guiding judicial interpretation of provisions during a public emergency on the other. In the meantime, the British people will be governed under the ineffective, flawed anti-terror legislation devised under the terms of the HRA.
To govern the British people on our own terms, we must repeal the Act. As I said in a debate in Westminster Hall recently, I am all for a Bill of Rights, but which one? Similarly, on the question of the rule of law: which law, whose law, and who is going to enforce it? Whatever emerges must have unimpeachable superior jurisdiction, based on Westminster overriding any other competing jurisdiction on behalf of the British people. We must have British law for British judges if we are truly to defend and govern the British people.
Bill Cash is the Conservative MP for Stone and chairman of the European scrutiny committee in the Commons
Julian Huppert MP says No
I have a poster on my office door that lists the rights enshrined in the Human Rights Act – in the shape of a heart. Underneath the heart, the poster asks: “What’s not to love?”
It is a clear way of summing up the problem at the heart of the ‘debate’ on the HRA. Since its introduction in 1998 – a long-held Liberal/ Liberal Democrat policy finally implemented – the amount of misinformation peddled about the Act has attained ludicrous proportions. People hold misconceptions, and then base their view of the Act upon them. The right-wing press, in particular, actively fuels these misconceptions.
One notorious example was the Dennis Nilsen case. In 2001, numerous media reports said that Nilsen was using human rights law to demand access in prison to hardcore pornography. It has since become a well-known meme among those who oppose the HRA to suggest that human rights law gave prisoners access to hardcore porn. In reality, the court denied Nilsen even permission to bring a claim, as there was no arguable case that any of his human rights were being breached. However, this is rarely pointed out.
It’s an insidious problem, as those who want to jettison this vital piece of legislation are given free rein to build convincing-sounding straw men. And, by the same token, they can avoid explaining which of the rights they object to. Is it the right to life? The right to freedom of thought, religion and belief? The right to free elections? Or even the freedom of assembly?
The rights enshrined in the HRA come from the European Convention on Human Rights (ECHR). This, in itself, creates further confusion, as many people hear the word ‘European’ and assume, falsely, that it refers to the European Union and is part of an EU project to change the British way of life.
In fact, the ECHR was proposed and negotiated for strongly by the UK, drafted mainly by British lawyers and adopted by the Council of Europe (a council first proposed by Winston Churchill during World War II and established in 1949). As Jesse Norman and Peter Oborne have noted in their pamphlet Churchill’s Legacy: The Conservative Case for the Human Rights Act, the ECHR stands as a formidable political achievement, and it would send a terrible message both to our European allies and to the world if we withdrew from it. The ECHR was, largely, Britain’s statement of principles, and a challenge to the rest of Europe to match us. It would be a disgrace to fail our own challenge.
The chief argument used to introduce the Act wasn’t based on the proud British principles that many of us would have liked; it was a practical and pragmatic piece of legislation designed to avoid costly trips to Strasbourg every time someone wanted to challenge a law that they perceived was infringing their rights. Repealing the Act would reinstate that expense, and result in more decisions about Britain being made in Strasbourg, rather than by our own judges.
The error made with the Act was in failing afterwards to explain its benefits. The Labour government that introduced it found itself competing with it on too many occasions, as it embarked upon a major attack against our civil liberties through a programme of centralised authoritarianism, done in the name of ‘the war on terror’. What good was the HRA when New Labour’s database state was being built, tourists, photographers and trainspotters were routinely treated as terrorist suspects, and the right to peaceful protest was systematically eroded until it became almost a cipher?
We must be clear, however, on what the Act is not. It is not a Bill of Rights in the style of the American constitution, with the power to strike down legislation that does not comply. In that sense, it does not go far enough for those who’d like the judiciary to act as a greater balance against governments afflicted by legislative diarrhoea. But the HRA has, nonetheless, had an important impact on the political discourse in our country – it has acted as a totemic reminder of the need to strike a balance between liberty and security, and to preserve the liberties that grew up naturally as a result of our common law.
I’m delighted that my party stands in the way of the Conservatives’ calls for repeal. Such an action would be legally impotent, and – more importantly – would deeply damage our common values.
Julian Huppert is the Liberal Democrat MP for Cambridge, and a member of the home affairs select committee and the joint committee on human rights