Human Rights

Background – Motivation/The need for reform?

• A number of factors led the Labour party to incorporate the ECHR into British law: a desire to bring the British constitution into line with the rest of Europe; increase in powers of the police and courts in 80s and 90s = major threat to our rights
• British Govt. = brought before EC of HR 50 times since 1966 and had lost most = embarrassment
• New Labour = active citizenship – principle that citizens have responsibility for their communities – in return they needed guaranteed rights
• it was part of the devolution settlements that the new assemblies should be bound by the ECHR

Reforms

• HUMAN RIGHTS ACT 1998 – made the ECHR part of British law = binding on virtually all public bodies, in virtually all circumstances and can be enforced by any British court of law
• Came into force in 2000

What were the effects of the reform?

• Act states that ECHR is binding on virtually all public bodies in virtually all circumstances: devolved bodies; Local Govt; Govt ministers, civil servants and depts.; all government executive agencies; all quangos; any other organisation engaged in public business (including schools, the media charities etc)
• Actions of the above can be scrutinised by the courts and declared illegal
• EXCEPTION – Parliamentary legislation – to continue principle of PS – the ECHR cannot be considered superior to Parliament
• A minister who introduces new legislation to Parl must make a declaration as to whether the Govt believes that the proposal is compatible/incompatible with the Convention
• If = incompatible – this will be taken into consideration during the debate
• If the Bill still receives Parl approval (despite the declaration) it will have to be enforced by the courts
• The European Court of Human Rights may declare an Act to be in breach of the convention – but this is not binding in the UK

How successful has it been? – Praise/criticisms

• In some senses HRA = “an extremely radical example of constitutional reform” [McNaughton] – Some commentators = it is the most important development since the Great Reform Act of 1832
• First example of the codification of rights in the UK in modern British history (magna carta 1215)
• Huge advance in protection of individuals against the state
• Critics however – it does not go far enough
• It preserves PS and therefore Parl legislation = exception to its jurisdiction = failure to deal with a fundamental problem in UK Constitution = enormous power of Govt and its ability to control Parliament [Elective Dictatorship]
• If it had been binding on Parl legislation it would have been a major check on governmental power
• 2004 – contradiction to  criticisms that the Act = too weak – Under anti terrorism legislation 2001 Security services = granted power t detain without trial British citizens who = suspected of carrying out terrorism – 8 = held in Belmarsh – appealed on grounds that this detention went against their HR and contravened the ECHR – they were successful
• However, Parliamentary Sovereignty = Govt did not have to obey this judgement
• ECHR = not binding on Parliament – BUT Govt felt it had to act and the legislation = amended so that safeguards were added
• Belmarsh case suggests that the passage of the HRA = more dramatic than envisaged in constitutional terms
• In 2005 rules on deportation of foreign terrorist suspects also had to be amended – ECHR – forbids use of torture – implies should not deport anyone who = likely to be tortured
• Govt – had to gain assurances that deportees would not be tortured
• HRA therefore ‘tied’ govt. hands in its efforts to deal with terrorist infiltration

Future

• 18 May 2010 – Special Immigration Appeals Commission (SIAC)  = that two men allegedly involved in a terror plot could not be deported to Pakistan; tabloid and conservative media in Britain has reacted with rage at the decision, alleging that European Human Rights legislation is endangering the British public.
• The case is already being used by those who want to see the repeal of the Human Rights Act
• Formerly Tory policy = repeal of the HRA.
• Now, however, leading Conservatives are backing away from this stance, and the coalitiongovernment is talking only about a review of “existing measures and obligations.”
• ‘We will establish a Commission to investigate the creation of a British 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 British law, and protects and extends British liberties. We will seek to promote a better understanding of the true scope of these obligations and liberties’ CPG