By Aaron Palmer
Edited by Cameron Martin
Human rights, a term that in the UK held extraordinarily little meaning until
1998 with the Human Rights Act (HRA) which brought human rights into the
jurisdiction of the UK domestic courts allowing for human rights cases to be
heard in the UK for the first time since the inception of human rights in the
1948 Universal Declaration of Human Rights (UDHR). However, this article
won’t focus on the UDHR, but rather the Bill of Rights as proposed by Dominic
Raab which would replace the HRA and fundamentally alter the UKs
relationship with both the European Convention of Human Rights (ECHR) and
the European Court of Human Rights (ECtHR) which have been the ruling
sources of law regarding human rights for the last 70 years.
The ECHR was brought into existence in the 1950s drawing heavy influence
from the UDHR but is not to be confused with it as there are some distinct
differences between the two. The HRA only related to the rights under the
ECHR and what are labelled as convention rights or articles from now on refer
to the ECHR.
The first of these key issues begins with the scrapping of section 3 of the HRA.
Section 3 of the HRA gives UK courts the power to infer human rights
protections from UK statutes (laws) or to find them compatible with
convention rights if it can’t be read to be. By the Bill of Rights scrapping such
an important aspect of the HRA without even so much as a replacement to
stand in its place the protections the courts can grant to individuals and their
human rights will be severely limited which could cause widespread violations
of rights which were previously protected. Furthermore, this would also
severely limit the scope of convention rights in the UK, essentially phasing
convention rights out and bringing in a new type of domestic human rights that
the UK parliament is free to add and subtract from at any point, creating a
barrier between what would become the greater extent of human rights
enjoyed among other Council of Europe (CoE) members and the more minimal
protections in the UK. This would cause serious issues especially in respect to
Article 8, the right to respect for private life, as under UK law there is no law of
privacy nor is there any law that read, other than defamation, can be used to
protect the private lives of UK individuals.
The second of these issues brushes upon a certain issue like the issue just
discussed, however it goes much further and deeper. Under the proposed Bill
of Rights only judgements from cases in the ECtHR decided before it passed, if
it does pass, could be applied to UK court decisions, or used by UK courts as a
source of law and any decisions that come after will have no legal sway in UK
courts. This causes two issues, first, it weakness the human right protections
that UK individuals enjoy under their convention rights leaving many with no
protection with an example being transgender rights which the ECtHR protects
under Article 8 would no longer be broadened in the UK though ECtHR case
law. The second issue this creates is a major uncertainty in the law. As of now
in the UK if the ECtHR have decided on something as the law in that certain
human rights area, the UK domestic courts may follow it, even the Supreme
Court, and most times will, unless another case at the ECtHR was to overturn
that ruling or to adjust it giving the legal world an element of certainty in the
UK, however under the Bill of Rights this would not be the case. Under the Bill
of Rights, with the ECHR and ECtHR and all future case law effectively being
separated from UK statute and case law could create an effect that some
judges may interpret as the convention rights almost being powerless and
whereas judges would have been keener to follow precedent set by the ECtHR
under the Bill of Rights, they may be more hesitant. This would be due to a
freezing of any future ECtHR case law being considered causing it to seem less
substantial or important and a third issue which will be addressed in the next
paragraph.
The third and final issue that will be addressed is the re-working of a concept
known as a declaration of incompatibility where any court in the UK can
declare that a piece of legislation is incompatible with any number of the
convention rights where parliament may, most times they do, change the law
to fit with the courts suggestions for it to be in accordance with convention
rights. In the proposed Bill of Rights, the declaration of incompatibility has
thankfully been left in from the HRA however it has had two major alterations
to it. When the court reviews a piece of legislation as to whether the
legislation itself is proportionate with policy aims or other convention rights,
regardless of whether it actually breaches those convention rights or not, and
that the greatest possible weight should be given to the principle that
decisions about how such a balance should be struck have been properly made
by parliament. This last part is by far the most concerning as if a declaration of
incompatibility were to be made the court that has issued would have almost
stated that they believe parliament got the balance wrong and that parliament
made an incorrect judgement. This would open the UK courts up to a whole
other level of criticism in the media and from parliament which would create a
chilling effect where the courts would very rarely challenge parliament's
decision in creating this act unless they dare accuse parliament of striking an
unfair balance.
Overall, the Bill of Rights and the new human rights regime that would usher in
over the UK if it were to be passed would be disastrous for the UK and its
citizens, almost bringing the country into what could very easily slip into a
totalitarian state which the convention was set up to prevent happening.
d