Should the Human Rights Act 1998 be repealed in favour of a ‘British Bill of Rights’?

The role of the Human Rights Act of 1998 on the protection of fundamental rights and freedoms in the United Kingdom is one that is well established in UK law. Once seen as the very touchstone of the incorporation of human rights in the UK, the Human Rights Act was intended to ‘bring rights home’[1], incorporating the European Convention on Human Rights into British law. As Lester writes, the Human Rights Act ‘exerts a magnetic force over the entire political and legal system, and is a measure of fundamental constitutional importance’[2]. On face value, the changes brought about by the Human Rights Act seem to successfully enhance the protection of rights and freedoms in the UK. On further analysis however, some argue that there are fundamental structural weaknesses within the Act itself. As such, there have been growing demands for the repeal of the HRA and, as Prime Minister David Cameron advocates, the introduction of a ‘Modern Bill of Rights’ for Britain[3]. This has driven the government to establish the Commission on a Bill of Rights, which has been directed to investigate whether such a Bill is needed to ‘protect and extend’ existing rights[4]. In this essay, I shall discuss the arguments for and against the repeal of the HRA, with particular focus on the range and intensity of rights protection (I.) and the relationship between the executive and the judiciary, both of which provide arguments for and against the advent of a Bill of Rights in and of themselves (II.).

I.   The Rights Protected by the HRA

One of the key arguments in favour of the introduction of a British Bill of Rights is the argument that the range of rights protected by the Act is severely restricted. As Amos states, the Human Rights Act ‘only gives further effect to a very limited and outdated range of human rights contained in the ECHR’[5]. Ultimately, the HRA only gives supplementary effect to Protocols 1 and 6 of the ECHR, both of which contain predominantly civil and political rights as opposed to the economic, social and cultural rights that are deemed important within our society today. As Lord Bingham noted in R (Al-Skeini) v Secretary of State[6], rights under the Convention differ from rights created by the HRA by reference to the Convention. A clear example of this is the fact that the Act fails to give rights to the protection of government information and personal data, a matter criticized by the Conservative Party[7]. Additionally, although the United Nations Human Rights Committee hailed the entry of the HRA into domestic law, it also observed that the HRA had failed to establish the same level of protection to other Covenant rights[8]. Similarly, the European Commission against Racism and Intolerance has pointed out that although the HRA gives effect to the ECHR, it does not provide a ‘general superseding guarantee against discrimination’[9].

Furthermore, as Maer states, ‘some have argued that the HRA does little to protect historic constitutional rights and liberties, such as the right to trial by jury or free speech’[10]. As such, a Bill of Rights could ‘bring together in one place a range of welfare entitlements currently scattered across the UK’s legal and political landscape’[11], and, as the Bill of Rights Forum has recommended, new rights such as the right to culture, language, identity, adequate standard of living and the right social security[12]. Thus, unlike the ‘limited’ protection that is offered by the HRA, a British Bill of Rights could greatly enhance the range of rights protected in the UK, giving body to a more substantive, more applicable document on which to base the law. The Commission on a Bill of Rights found that of those respondents who expressly advocated a Bill of Rights, more than 50 percent did so on the basis that they ‘envisaged it as building on the Human Rights Act by the inclusion of additional rights’[13]. Ultimately, such additional rights provide a case for the repeal of the HRA and introducing a new Bill of Rights with additional, clearer rights.

On the other hand however, it could also be argued that the range of rights protected by the HRA is, in and of itself, an argument against the introduction of a British Bill of Rights and the repeal of the Human Rights Act of 1998. Despite the fact that Nick Herbert MP and many other Conservative Party members have attacked the HRA for its limited range of rights, Mr. Herbert himself said in his lecture to the British Institute of Human Rights, that the Conservative Party was not in favour of introducing another level of rights. If this is the case, then why should the collection of rights already protected by the HRA come under scrutiny? While the concept of a Bill of Rights is not one that is confined to the Conservative Party, Cameron and the Conservatives had pledged to replace the HRA with a British Bill of Rights in their last election manifesto. Furthermore, it could be argued that any such Bill introduced will actually dilute human rights rather than strengthen them, indeed a view shared by many commentators on the subject. The Commission on a Bill of Rights found that one of the ‘main reasons’ cited by respondents who opposed such a Bill was the possibility of a ‘dilution’ of human rights protections[14].

One major inconsistency that I find in the arguments in favour for such a Bill is the motivation for the repeal of the Human Rights Act in the first place. It must be remembered that one of the primary justifications for repealing the HRA is due to the fact that it has a ‘damaging impact on our ability to protect our society against terrorism’[15]. If this is the case, then could it not be assumed that a new Bill of Rights would reduce the protection of rights provided by the HRA, which as David Cameron believes, has compounded the matter[16]? Conservatives like Cameron want to increase the scope of the rights protected, by including some ‘particularly British rights that we feel strongly about, like jury trial’, but at the same time limit and place restrictions on the rights protected, such as freedom from torture under Article 3 of the ECHR. This, in my opinion, exposes a contradiction in the motives of such a Bill. As Fenwick states, depending on the detail of the new Bill of Rights, it may be more likely that the ‘protection for rights is somewhat weakened, rather than enhanced’[17]. Thus it is clear that, instead of providing additional and stronger rights, a Bill of Rights may actually have an undesirable effect. Although more rights may be included, the protection of such rights may be considerably weaker than those protected by the HRA.

II.   The Shift of Power from Parliament to the Judiciary

 

Another key argument in favour of the repeal of the Human Rights Act and the introduction of a Bill of Rights is the argument that the 1998 Act shifts power away from Parliament, the supreme lawgiver. As Dicey stipulated, it is Parliament, that, under the English Constitution, has the ‘sole right to make or unmake any law whatever; and further, that no person or body is recognised by the law as having a right to override or set aside the legislation of Parliament’[18]. Similarly, as Bradley states, ‘the two “sovereignties” exercise related but distinct functions: law making, on the one hand; on the other, interpreting and applying the law’[19]. Since the introduction of the HRA into the law of the UK, many have argued that this distinction has become blurred, with the judiciary encroaching upon the sovereignty of Parliament. Under Section 3(1) of the Human Rights Act, which Johnson argues is perhaps the most ‘crucial’ proviso of the Act, the courts are given discretion in interpreting acts of Parliament in a manner that is compliant with the Convention[20]. Bennion claims that when adjudicating under Section 3, ‘Parliament’s original intention is no longer the sole deciding factor…the new rule tinkers with the classic idea that the sole test is the legislator’s intention’[21].

A clear example of this is expressed in the case Ghaidan v Godin-Mendoza[22], in which Lord Nicholls claimed that, under Section 3, the courts may be required to depart from the intention with which Parliament enacted the legislation[23]. Similarly, as Johnson states, judges have shown ‘outstanding ingenuity and intellectual subtlety in contriving to produce reasoned arguments for establishing compatibility with Convention rights’[24]. This is supported by the case of Wilson v First County Trust[25], in which the House of Lords suggested that the normal assumption that the court is seeking the intention of Parliament does not apply, and it is for the Court to make a decision about whether or not the statute can be read in a way compatible with the Convention[26]. Indeed, in the view of David Cameron, ‘since the advent of the Human Rights Act, judges are increasingly making our laws’. Thus it could be reasoned that the repeal of the Human Rights Act is due, so that the ‘balance between the power of the legislature will be recalibrated in favour of Parliament’[27]. Indeed, these concerns are valid ones, but are they enough to warrant the introduction of a Bill of Rights?

However, it could also be argued that the separation of powers doctrine itself is an example of an argument against the repeal of the 1998 Act, and also against the introduction of a Bill of Rights. Ultimately, it is debatable as to whether Section 3 of the HRA actually significantly affects the separation of powers doctrine. While the Conservative Party believes that it has, it must be remembered that the purpose of this section was indeed to uphold the principle of parliamentary sovereignty. Bradley correctly states that the mechanism of declaring an Act of Parliament incompatible under Section 4 of the HRA ‘preserves the formal authority of an Act of Parliament’. This is supported by Fenwick, who states that entrenchment of the HRA was rejected in order to ‘maintain parliamentary sovereignty and to avoid handing over too much power to the unelected judiciary’[28]. Despite the criticism against it for increasing the powers of the judiciary, how would any other system work? If indeed the way forward is a British Bill of Rights that permits the legislature to have the final say in matters of interpretation and application, what would this way be? This is recognised by Munce, who ponders over the ‘fundamental questions’ that remain unanswered, such as how Herbert’s proposal for a ‘British Bill of Rights…preventing judge-made law’[29] will ‘ensure that the judiciary does not encroach any further upon the power of Parliament’[30]. Similarly, Klug states that the ability of British courts to develop their own interpretation of the broad values in the HRA is ‘an essential hallmark that distinguishes the HRA from an incorporated treaty typical of monist systems’[31], in which ratification of a treaty automatically binds all national authorities, including the courts, to comply with its provisions. Thus, having a system in which the courts do not play a rule is both improbable, as well as impracticable.

One possible way in which a government could achieve the aims they propose is through withdrawing from the ECHR, which they are perfectly entitled to do. However, as O’Cinneide writes, in such a case, the UK would, in ‘all likelihood, face severe diplomatic sanctions…including expulsion from the Council of Europe’[32]. In addition to this, for the UK to renounce the ECHR would ‘greatly weaken its moral authority and cause serious damage to its attempts to ensure that other states respect their human rights obligations’. Thus, as both Amos and O’Cinneide agree, it is unlikely that any government would pursue such a course. In light of this, it could be argued that the current mechanism used under Sections 3 and 4 of the HRA is the closest possible model to that which the advocates of such a Bill of Rights endorse. Indeed, if a ‘Bill of Rights’ is to follow that of most other continental countries, such as the United States, the courts would not have the power to interpret legislation in a way that is contrary to the intention of Parliament, but will have the ability to strike down Acts of Parliaments that are not compliant with the Convention, which would, in my opinion, make the principle of parliamentary sovereignty a mere shadow of what it what once was. Ultimately, it is difficult to argue that any form of a Bill of Rights could successfully address the enhanced powers given to the courts by the HRA.

Conclusion

 

Ultimately, there are arguments both in favour and against the repeal of the Human Rights Act of 1998 and the introduction of a British Bill of Rights, which is currently being advocated by the Conservative Party. Despite this however, I am inclined to conclude that the disadvantages of the introduction of a British Bill of Rights are greater than the advantages that such a Bill would bring to the UK. While only having covered a few of these arguments, I find it inconceivable that any government would choose to repeal the Human Rights Act; based on the consequences such a move would have, not just domestically, but throughout Europe. With regards to the range of rights protected by a Bill of Rights, the Human Rights Act protects ‘all the standard rights present in bills of rights the world over’[33]. However, I fail to see why introducing a whole new Bill to address the shortfall for the few rights, specifically rights to data protection and jury trial as advocated by the Conservative Party, is necessary. As Harvey suggests, we should ask ourselves whether such an action would be worth the accompanying difficulties[34]. As Klug states, if the UK is to remain within the ECHR, as every mainstream political party intends, no other approach to a Bill of Rights makes sense’[35]. I propose that, in accordance with Klug’s views, a consultation could take place on additional rights that supplement, rather than replace the HRA[36]. Furthermore, with regards to the HRA shifting powers from Parliament to the judiciary, it must be remembered that the Act is unique because of its powers to maintain parliamentary sovereignty, as was not designed with the intention of undermining it, because an arrangement like this ‘could not be reconciled with our own constitutional traditions’[37]. Most commentators on the subject acknowledge that respect for the HRA is low, and continues to be tarnished by politicians and the media alike. However, I believe that, with the appropriate political will, as well as the sufficient allocation of resources, the shortcomings of the Human Rights Act can easily be overcome. Once again however, this will necessitate politicians to stop smearing the HRA for their own political ends.

Umar SHAIKH

Bibliography

Books

Adler J, Constitutional and Administrative Law, (9^th Edn, Palgrave 2013)

Amos M, Human Rights Law (Hart 2009)

Bradley A, Constitutional and Administrative Law (15^th Edn, Pearson 2011)

A.V.Dicey, The Law of the Constitution (10^th Edn, 1959) page 39

Jowell J and Oliver D (eds), The Changing Constitution (7^th Edn, OUP 2011)

Fenwick H and Phillipson G (eds), Constitutional & Administrative Law (8^th Edn, Routledge 2013)

Fenwick H and Phillipson G (eds), Text, Cases and Materials on Public Law and Human Rights (3^rd Edn, Routledge 2011)

Johnson N, Reshaping the British Constitution (Palgrave Macmillan 2004)

Le Sueur A, Public Law, Text, Cases and Materials (2^nd Edn, OUP 2013)

Journal Articles

 

Colin Harvey, ‘Taking the next step? Achieving another Bill of Rights’ EHRLR 24

Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ (2007) P.L. 201

Colm O’Cinneide, ‘Human rights law in the UK- is there a need for fundamental reform?’ (2012) EHRLR 595

Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) The Political Quarterly, 83

Bennion, ‘What is “possible” under section 3(1) of the Human Rights Act 1998’ (2008) PL77

Merris Amos, ‘Problems with the Human Rights Act 1998’ (2009) MLR

Reports

 

Rights Brought Home, Cm 3872 (1997) available at <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf> accessed 16 April 2014

Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (2012) (Volume 2: Annexes) page 122

Bill of Rights Forum, Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland (Belfast: BIRF, 2008) available at <http://www.ictuni.org/download/pdf/bill_of_rights_final_2.pdf > accessed 16 April 2014

Ministry of Justice, Rights and Responsibilities: Developing our Constitutional Framework, March 2009

European Commission against Racism and Intolerance, Third Report on the United Kingdom CRI (2005) 27

UN Human Rights Committee Concluding Observations: United Kingdom CCPR/CO/73/UK; CCPR/CO/73/UKOT, 6 December 2001

Speeches

 

Nick Herbert MP, ‘Rights without responsibilities- a decade of the Human Rights Act’ 24 November 2008

 

David Cameron, ‘Balancing freedom and security: a modern British bill of rights’, speech given at the Centre for Policy Studies, London, 2006

Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ Irvine Human Rights Lecture University of Durham, Human Rights Centre, 2007

Cases

 

Ghaidan v Godin-Mendoza [2004] 2 AC 557

R (Al-Skeini) v Secretary of State [2007] UKHL 26

 

Wilson v First County Trust [2003] UKHL 40

Government Documents

Maer L, ‘The Human Rights Act to a British Bill of Rights?’ (2010) Key Issues for the New Parliament 2010- Security and Liberty

[1] Merris Amos, ‘Problems with the Human Rights Act 1998’ (2009) MLR page 886

[2] Anthony Lester, ‘Human Rights and the British Constitution’, in Jowell J and Oliver D (eds) The Changing Constitution (7^th Edn, OUP 2011) page 71

[3] David Cameron, Speech to the Centre for Policy Studies, London, June 26, 2006, Balancing freedom and security-A modern British Bill of Rights

[4] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (2012) (Volume 1)

[5] Merris Amos, ‘Problems with the Human Rights Act 1998’ (2009) MLR page 890

[6] R (Al-Skeini) v Secretary of State [2007] UKHL 26 para 4 per Lord Bingham

[7] Nick Herbert MP, ‘Rights without responsibilities- a decade of the Human Rights Act’ Lecture to the British Institute of Human Rights (24 November 2008)

[8] UN Human Rights Committee Concluding Observations: United Kingdom CCPR/CO/73/UK; CCPR/CO/73/UKOT, 6 December 2001 at page 7

[9] European Commission against Racism and Intolerance, Third Report on the United Kingdom CRI (2005) 27 at page 7

[10] Lucinda Maer, ‘The Human Rights Act to a British Bill of Rights?’ (2010) Key Issues for the New Parliament

[11] Ministry of Justice, Rights and Responsibilities: Developing our Constitutional Framework, March 2009 page 32

[12] Bill of Rights Forum, Recommendations to the Northern Ireland Human Rights Commission on a Bill of Rights for Northern Ireland (Belfast: BIRF, 2008) available at <http://www.ictuni.org/download/pdf/bill_of_rights_final_2.pdf > accessed 16 April 2014

[13] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (2012) (Volume 2: Annexes) page 125

[14] Commission on a Bill of Rights, A UK Bill of Rights? The Choice Before Us (2012) (Volume 2: Annexes) page 122

[15] David Cameron, ‘Balancing freedom and security: a modern British bill of rights’, speech given at the Centre for Policy Studies, London, 2006

[16] Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) The Political Quarterly 83, page 63

[17] Helen Fenwick et al, Constitutional and Administrative Law (8^th Edn Routledge 2013) page 200

[18] A.V.Dicey, The Law of the Constitution (OUP 2013) page 27

[19] Bradley, ‘The Sovereignty of Parliament-form or substance?’, in Jowell J and Oliver D (eds) The Changing Constitution (7^th Edn, OUP 2011) page 37

[20] Nevil Johnson, Reshaping the British Constitution (Palgrave Macmillan 2004) page 246

[21] Francis Bennion, ‘What is “possible” under section 3(1) of the Human Rights Act 1998’ (2008) PL77, page 91.

[22] Ghaidan v Godin-Mendoza [2004] 2 AC 557

[23] Ibid at para 30 per Lord Nicholls

[24] Nevil Johnson, Reshaping the British Constitution (Palgrave Macmillan 2004) page 246

[25] Wilson v First County Trust [2003] UKHL 40

[26] John Alder, Constitutional and Administrative Law (9^th Edn, Palgrave Macmillan 2013)

[27] Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) The Political Quarterly 83, page 65

[28] Helen Fenwick et al, Constitutional and Administrative Law (8^th Edn Routledge 2013) page 199

[29] Nick Herbert MP, ‘Rights without responsibilities- a decade of the Human Rights Act’ 24 November 2008

[30] Munce, ‘Profoundly Un-Conservative? David Cameron and the UK Bill of Rights Debate’ (2012) page 65

[31] Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ (2007) Public law page 706

[32] Colm O’Cinneide, ‘Human rights law in the UK- is there a need for fundamental reform?’ (2012) EHRLR 595, page 600

[33] Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ (2007) PL 201 page 717

[34] Colin Harvey, ‘Taking the next step? Achieving another Bill of Rights’ EHRLR 24 at page 40

[35] Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ Irvine Human Rights Lecture, University of Durham (2007)

[36] Francesca Klug, ‘A Bill of Rights: Do we need one or do we already have one?’ (2007) PL 201, page 717

[37] Rights Brought Home, Cm 3872 (1997), para 2.16 <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263526/rights.pdf> accessed 16 April 2014