There has been a lot of discussion and panic over the Conservative party's controversial plans to scrap the Human Rights Act - plans which are being set further into motion after securing a small parliamentary majority in last week's general election.
The plans will be led by the new justice secretary, Michael Gove who has no legal training and has previously stated that he believes Britain was wrong to abolish hanging. Human rights groups believe that Gove will have difficult time convincing the UK Supreme Court and other senior lawyers and judges that he fully understands and respects the rule of law.No judgement.
However, is getting rid of the Human Rights Act as grim as it sounds? Will we now have no protection and be at the mercy of the government? Why on earth would anyone ever want to get rid of an act that secures the most fundamental of rights in society? Today at Unlock the Law we look behind the controversial policy to scrap the Human Rights Act.
What is the Human Rights Act?
The Human Rights Act was introduced by the Labour government in 1998 - however it received widespread cross-party support. The Act protects fifteen fundamental freedoms:
- The Right to Life
- The Prohibition of Torture
- The Prohibition of Slaver and Forced Labour
- The Right to Liberty and Security
- The Right to a Fair Trial
- No Punishment Without Law
- The Right to Respect for Private and Family Life
- Freedom of thought, conscience and religion
- Freedom of expression
- Freedom of assembly and association
- Right to Marry
- Prohibition of discrimination
Each of these articles are based on the articles of the European Convention on Human Rights and must be upheld by all public bodies. This includes bodies providing public services, courts and tribunals. Any legislation created by the UK government must be interpreted in a way that is consistent with the fundamental freedoms and rights enshrined in the EU convention and in turn the Human Rights Act.
All those freedoms sound great, why on earth do the Conservatives want to get rid of the Human Rights Act?
Getting rid of the Human Rights Act is part of Conservative scepticism toward Europe. Scrapping the Act means that the formal link between British courts, and the European Court of Human Rights (ECHR) will be broken. This means that the UK will no longer be bound by decisions of the ECHR, especially where as the Conservatives argue, the Convention is "misinterpreted".
The main argument by the Conservatives is that foreign nationals who have committed serious crimes, may use the freedoms enshrined in the act to remain in the UK.
Furthermore, there is concern that the ECHR in Strasbourg are making more and more attempts to overrule decisions made by UK courts in order to enforce the principles of the Convention. For example, the ECHR lifted the ban on voting rights for prisoners and banned life sentences.
How does the government plan to protect our rights?
The Conservatives have made plans to introduce a "British Bill of Rights" that will enshrine "British values" - whatever that means. Whilst the party believe that the Human Rights Act based of the fundamental rights and freedoms universally agreed by all of Europe contains a "laudable" set of principles, the government do not plan to introduce a new set of basic rights but will:
"restore common sense and tackle the misuse of the rights contained in the Convention".
A vague intention at best. The Conservatives did publish a short strategy paper last year which showed some of the key ideas voiced. However, the promise to publish a full draft bill before the election was not realised and we are still waiting to see what the full plan actually is.
What will this mean for rights in the UK in practice?
The government plan to replace the Human Rights Act with a UK Bill of Rights will mean that the European Court of Human Rights will no longer be able to overrule judgements made in British courts to secure proper interpretation of the European Convention on Human Rights. The UK Supreme Court will become supreme. However, this could cause great upheaval for the UK and even cause a constitutional crisis as it would mean the UK is in breach of the Good Friday agreement with Northern Ireland as it affects freedoms and human rights protections.
However, it is anticipated that although the ECHR will not be able to force UK courts to effect change, those who have had their rights under the European convention on Human rights will still be able to bring their case before the Strasbourg court. A highly complicated system indeed.
Although the new Bill of Rights may contain some of the same rights and freedoms, it is anticipated that certain rights will be limited and could be overturned in particular the right to privacy or family life.
How will this affect Scotland?
The proposals have created a very complicated and tense situation between Scotland and Westminster. Although the Human Rights Act is a matter reserved to the UK, human rights issues are a devolved matter. Furthermore, under devolution legislation any legislation passed by the Scottish parliament and decisions of Scottish ministers must be compliant with the European convention and the 1998 Human Rights Act.
As if that wasn't enough, the Scottish Parliament have made clear that they will not give legislative consent to Westminster to scrap the Human Rights Act. Social justice secretary, Alex Neil, said:
"The Scottish government's position is that implementation of the Conservative government's proposals would require legislative consent and that this parliament should make clear that such consent will not be given."
Scotland can refuse to consent to the legislation using a Sewel motion.
At present it is difficult to say what will happen to Scotland if the proposals go ahead. It may be possible to exclude Scotland from the repeal of the Act, meaning it would still be in effect in Scotland. Or, Scotland could make legislation providing human rights protections for devolved areas. On the other hand, Scotland's only Conservative MP claims that the new legislation replaces previous legislation and thus it would simply apply to Scotland regardless. Either way, it seems this could be the first of many issues to cause difficulty for the newly elected government.
Guide to Human Rights in the UK
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