The case for the Human Rights Act part 1 of 3 responses to the commission on a bill of rights: hra plus not minus



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The case for the Human Rights Act

PART 1 OF 3 RESPONSES TO THE
COMMISSION ON A BILL OF RIGHTS: HRA
PLUS NOT MINUS


Contents


Contents 2

Foreword 3

Introduction 5

The role of the Commission and our response 7

Chapter 1: Do we need a Bill of Rights? 11

1. The Commission's position 11

2. Human rights in British history 13

3. The Human Rights Act: a British model of human rights legislation 18

4. The effectiveness of the Human Rights Act 21

Chapter 2: Retaining the rights and mechanisms of the HRA 29

1. Section 2: Interpretation of Convention rights 30

2. Section 3: Interpretation of legislation 41

3. Section 4: Declarations of incompatibility 49

4 Section6: Acts of public authorities and meaning of 'public authority' 56

5. Section 8: Judicial remedies 67

6. Section 10: The power to take remedial action 68

7. Section. 12 Freedom of expression 70

8. Section13: Freedom of thought, conscience and religion 71

9. Section 14 and 15: Reservations and Derogations 72

10. Section 19: Statements of Compatibility 73

Chapter 3: Implications for the devolved nations 79

1. Scotland 80

2. Wales 83

3. Northern Ireland 86

Chapter 4: The process for developing any Bill of Rights 88


Foreword


The Equality and Human Rights Commission welcomes this opportunity to respond to the consultation by the Commission on a Bill of Rights on whether a UK Bill of Rights should be developed to replace the Human Rights Act. As Britain's National Human Rights Institution we believe that we have a valuable role to play in providing evidence, advice and support in these discussions.

Britain has a proud and long tradition of developing human rights from the Magna Carta in 1215, the Bill of Rights in 1689, the involvement in drafting the European Convention on Human Rights, and the enactment of the Human Rights Act in 1998. This proud tradition continues with the UK government taking over the chairmanship of the Council of Europe for six months from November this year, and a British judge Nicolas Bratza being appointed the president of the European Court of Human Rights.

The Commission believes that the Human Rights Act has provided essential human rights protection to everyone in Britain and that it meets the needs of our British constitutional traditions. Our position is that if any Bill of Rights were developed it should only build on the rights and mechanisms contained in the Human Rights Act.

The Human Rights Act has had a significant positive impact on "bringing rights home" to everyone in Britain. Whereas before people would have to endure the considerable delay and expense of bringing a human rights claim in the European Court of Human Rights, the Act has meant that they could gain protection in our British courts. The Human Rights Act has also been designed to suit the particular British constitutional traditions of parliamentary sovereignty. Courts seek to interpret legislation compatibly with Convention rights but if they cannot, they have no power to strike down legislation. In addition, the Human Rights Act and the Convention rights have been woven into the recent constitutional fabric of the devolution settlements with Scotland, Wales and Northern Ireland. This ensures that human rights are central to the decision making of the devolved legislatures.

However, despite the reality of the positive impact of the Human Rights Act, evidence from reviews of the Act by the Commission and the government demonstrate that there is a substantial lack of understanding of the Act. Worst still, there are significant misconceptions of whom it protects, where it derives from and the limits of its application among the public, politicians, lawyers, the media and public authorities.

Major work is required by the government, the Commission and other key stakeholders to improve the understanding and application of the Act. But it does not in our view justify amending or repealing the Act itself, which if done would make Britain the first European country to possibly regress in the levels of its human rights protection. We look forward to discussing our response in more detail with the Commission on a Bill of Rights over the coming months.



Geraldine Van Bueren

Lead Commissioner on Human Rights

Introduction


‘Do we need a UK Bill of Rights?’ is the question posed by the Commission on a Bill of Rights (CBR). The Equality and Human Rights Commission's simple answer to that is we already have one in the Human Rights Act and we should keep it.

The longer answer requires an exploration of the development of human rights in Britain over 800 years, the development of international human rights frameworks in the aftermath of World War II, the path to incorporation of the European Convention on Human Rights (ECHR) in the UK by the Human Rights Act 1998 (HRA), and an analysis of the operation of the mechanisms in the HRA. This response provides that analysis, and argues that the path forward should build on the current rights and mechanisms in the HRA, rather than dilute or repeal them, to be ‘HRA plus’, not ‘HRA minus’.

It was Winston Churchill who inspired and worked towards the creation of the European Convention on Human Rights to help prevent a repetition of the atrocities of World War II. In his opening speech to the Congress of Europe in May 1948, Churchill proclaimed that the new Europe:

must be a positive force, deriving its strength from our sense of common spiritual values. It is a dynamic expression of democratic faith based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.’1

It was also a British lawyer and politician, David Maxwell Fyfe who contributed significantly to the drafting of the ECHR, and the UK was the first country in the Council of Europe to ratify the Convention in 1951.

Fast forward to the 1990s and after several decades of calls, on both sides of politics, for the incorporation of the ECHR into our domestic law, the HRA was born in 1998. It had three key aims. Firstly, it intended to ‘bring rights home’ by ensuring that the human rights of everyone in the UK could be protected in UK courts. Secondly, it sought to introduce key constitutional mechanisms to ensure that governments, parliaments and the courts embed human rights in their work to enhance the democratic processes. Thirdly, the government intended that the HRA would create a culture of better awareness of human rights throughout society.2 Finally, in seeking to achieve all these aims the government created a human rights framework that would ensure parliamentary sovereignty.

The HRA is now eleven years old, but its early years have been turbulent. Misunderstood and misrepresented by politicians and the media, it has been variously portrayed as a threat to parliamentary sovereignty, a European imposition, and a villain's charter. Equally, it has sometimes been misrepresented by lawyers and their clients in making human rights claims that had no foundation.

The terms of reference of the CBR state that it will investigate the creation of a UK 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 UK law, and protects and extends our liberties.’

There is no commitment to retaining the HRA mechanisms for embedding the Convention rights in the three arms of the State: the government, parliament and the judiciary.

The Equality and Human Rights Commission believes that the HRA has substantially improved protection and enjoyment of human rights for everyone in Britain. The mechanisms under the HRA have provided a balanced and uniquely British model for protecting human rights and gaining justice in British courts.

The Commission considers that the primary focus should be on two inter-related factors: improving understanding and improving public authorities’ application of the HRA. Substantial work is still required to improve understanding and reduce misconceptions of human rights by people working in public authorities, the general public, politicians and the media. Work is also needed to improve the application of the HRA by public authorities to their policies and practices, including identifying where it is not relevant. Together these measures will help improve the confidence of public service providers and help ensure that the HRA is applied sensibly and appropriately.

In our view, change to the HRA mechanisms is not required but substantial change is required in the understanding and application of the HRA.

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