10 myths about the Human Rights Act

3rd December, 2012 7:05 pm

Tory MP Richard Bacon tomorrow has a Ten Minute Rule Motion on repealing the Human Rights Act (HRA). No doubt we’ll hear the same old Tory arguments, and their commitment to the HRA’s replacement by a British Bill of Rights. But never have the Tories said what would be in their British Bill of Rights that isn’t already in the HRA. And I’ve never heard which rights in the HRA wouldn’t make it into their undefined Bill of Rights. The absence of detail is telling.

But the debate is a reminder of the growing threat to Labour’s HRA. The Labour movement needs to wake quickly from its slumber as the HRA’s opponents are on the march. Labour has a proud record on human rights. Attlee’s government was one of the first signatories to the 1948 UN Declaration on Human Rights and ratified the European Convention on Human Rights (ECHR) in 1951. Labour signed up the European Court on Human Rights in the 1960s and, in 1997, enshrined human rights into domestic law with the HRA.

From the Tories, it’s all negativity on the HRA.  Facts aren’t allowed to get in the way – cases are misreported, or the many instances of the HRA’s good use are ignored. Before entering into ill-informed debate in the future, I’d recommend all Tory MPs read the excellent recent British Academy report Human Rights and the UK Constitution.

A nasty dose of anti-Europeanism is also thrown into the mix, characterising our human rights legislation as imposed on us by unelected European judges. But this is a comical misreading of history. These are our human rights laws and we authored the ECHR, adopted by 43 countries and 800 million people – one of our finest post war exports. There needs to be an honest recognition that rights haven’t been imposed on us.

Supporters of human rights legislation need to counter these, and other, myths. To help, I’ve penned a myth-buster to face down the misreporting on our human rights act. Laminate it, keep it in your pocket, dust it down next time you’re faced with a Tory in full flow castigating the HRA. The time for being passive is fast disappearing. Let’s wake from our slumber and be proud of our Human Rights Act.

1. ‘We don’t need the HRA – people’s rights are protected in our laws, stretching back to the Magna Carta and the 1689 Bill of Rights’

History looks favourably on the UK’s long history of recognising rights and freedoms. But neither the Magna Carta nor the Bill of Rights provide protection modern Britain needs – neither protect an individual’s rights to be free from undue state interference in their personal life nor on freedom from discrimination or the right to free expression. Talk of common law protecting rights is also a gross over-exaggeration – common law can, in an instant, by overridden by new legislation.

 2. ‘The HRA is foreigners imposing their human rights laws on Britain’

History shows that it was Brits that wrote the ECHR. They are our human rights laws.

3. ‘A British Bill of Rights would be better than the HRA’

Firstly, the HRA is a British Bill of Rights. But it’s not clear what additional rights the Tories have up their sleeves to put in their Bill of Rights? Or are they proposing to ditch some rights – like protection from torture or free and fair election? They need to be honest, instead of being vacuous.

4. “It’s all lefty claptrap about rights of minority groups”

It couldn’t be further from the truth! It’s actually about empowering each and every individual citizen to challenge the power of the machinery of the state. In essence, its legislation that those on the right ought to favour – it’s about individual freedoms challenging state power.

5. “We managed before without it”

Prior to 2000, human rights cases had to be pursued in Strasbourg. Since 2000, with human rights legislation now enshrined in UK law, cases can be brought before British judges in British courts. Repealing the HRA would leave our citizens with nowhere to go but Strasbourg.

6. “Judges now make our laws, not Parliament”

Our Parliament is sovereign – it makes the laws of the land. Courts and judges don’t make laws – they operate within the laws as set by Parliament. Under the HRA, courts can only highlight human rights abuses – the so-called “declaration of incompatibility” – and it’s for Parliament to decide how to respond to such a declaration. While it can ignore the declaration, Parliament can’t be forced to change the law against its will.

7. “We no longer need protection against torture, abuse and slavery”

That takes for granted abuses which can still happen even in a modern society like the UK. Even today, instances of abuse and enforced slavery occur, and the HRA provides the mechanism by which victims can seek proper recourse.

8. “The public don’t understand the HRA like American’s do US constitutional rights”

Patience is a worthy attribute – the HRA is only 12 years old. The US constitution is hundreds of years old, and the Magna Carta before that is 800 years old. The HRA is one of the world’s youngest bills of rights and to junk it now while it’s still so youthful would be sheer folly.

9. “Anyone can bring cases under the HRA – it’s made a mockery of genuine human rights abuses”

This is partly a product of media reporting – much of which is of cases being launched under the HRA. However, the media often don’t report the ultimate outcomes, leaving the impression with the public that a wide range of claims are successful when they aren’t – and have often been effectively laughed out of court, failing at the very first hurdle.

10. “You never hear anything positive about the HRA”

There’s an issue in the way the media report on positive uses of the HRA. For example, the phone hacking scandal would never have happened without the HRA (Article 8 – right to a private and family life) and the Home Secretary would have extradited Gary McKinnon if it hadn’t been deemed contrary to his human rights under Article 3 (no torture, inhuman or degrading treatment). But in both these cases – and many others – you don’t hear of the HRA’s role.

Sadiq Khan MP is the Shadow Secretary of State for Justice

  • Frank Furter

    Actually I do not think it is about what’s in a British Bill of Rights, or what’s in the HRA, it’s about where the final decision on a particular case is made. If there was no recourse to the ECHR, then there would be no fuss. I have mixed feelings about this. I feel the ECHR has become more activist over the years. To take one example, prisoner voting may be a human right (ie intrinsic to ones life, dignity and freedom as a human being), or it may be a civic right (ie one granted as a member of a civic society but subject to the rules and customs of that society). Civic rights should not be decided by a court outside the jurisdiction, but by a court within the jurisdiction.

  • brianbarder

    I have some reservations about this. Labour is fully entitled to be proud of the HRA and to seek maximum publicity for its virtues — principally that it allows UK citizens to seek redress under the ECHR in the British courts, whereas before the HRA they had to go through the slow and cumbersome processes of the European Court of Human Rights (a major benefit which Sadiq Khan, rather oddly, doesn’t mention in his post). But the record of New Labour on human rights and civil liberties after the HRA (passed in the first care-free year of the Blair government) was increasingly dismal, with a raft of illiberal and even oppressive legislation under the excuse of the “war on terror” and the “fight” against crime: it was not surprising that Blair wound up regretting and denouncing the Human Rights Act, so right-wing and authoritarian had he become. Even more depressingly, One Nation Labour under Ed Miliband has so far shown no inclination to disown the illiberal excesses of a series of New Labour home secretaries, nor to chart a new and more liberal course in future, despite Ed’s clear promise to do so, made immediately after his election as leader. Until Ed’s Labour can be seen to have turned over a new leaf, I submit that it would be prudent not to make too much of Labour’s record in this area.

    I also suspect that some of Sadiq’s arguments in his rebuttals of the ten myths skate on thinnish ice. He leans on the now largely discredited myth of parliamentary sovereignty: Britain is legally bound by obligations stemming from international agreements to which it has subscribed, and parliament is powerless to repeal them without renouncing the original agreements, in some cases, such as the UN Charter and probably the ECHR, a practical impossibility; devolution has massively reduced parliament’s real powers, since repealing devolution is by now utterly impossible; parliament has lost much of its power to the EU, and probably can’t reclaim a significant amount of that power unless the UK gives up its EU membership, which would be like burning the house down to make a piece of toast; and parliament’s freedom of action is constrained in practical terms by, for example, market forces beyond its control. It is also misleading to claim that the Human Rights Act is a purely British law — legally and literally true, but the reality is that it merely embodies in English (British?) law an international treaty by which we are bound anyway.

    Finally, if Labour is so committed to our human rights laws and obligations, what is the Labour Opposition doing supporting a reactionary Tory home secretary in her condemnation of a closely argued judgement of the European Court (on votes for prisoners) and her proclaimed intention to appeal against it? Come to that, what are we to make of Labour’s commitment to human rights when Labour opposes the withdrawal from any prisoners of their right to vote, enshrined according to the European Court in article 3 of the first Protocol of the Convention? — and when the Labour opposition has consistently refused to support Ken Clarke in his determination to abolish the wickedly unjust régime of Indeterminate Sentences for Public Protection, a scandalous system introduced by a reactionary Labour home secretary and abolished by a small-l liberal Tory Justice Secretary (abolition came into effect yesterday, not a moment too soon, and still not welcomed by the Labour leadership)? Too much boasting about Labour’s human rights record since 1997 and right up to the present risks being thought unseemly, even insensitive.

  • Pingback: David Mead: Who You Gonna Call – Mythbusters: the Need For Vigilance in the Great HRA Debate | UK Constitutional Law Group()

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