Not long ago the post-Brexit Justice Secretary, Liz Truss, announced that the government are committed to scrapping the Human Rights Act and introducing a British Bill of Rights. Britain would still remain a signatory to the European Convention. When asked what the point would be, she responded gleefully, if somewhat hesitantly: “We were members of the Convention long before the Human Rights Act… The Human Rights Act is a fairly recent phenomenon. And what the British Bill of Rights will do is protect our rights, but in a better way.” She then added: “There are big problems with the Human Rights Act that are nothing to do with the convention – problems that have only emerged since the Human Right Act came in.”
The absurdity of these remarks made me wonder if I was reading thedailymash. Well, it was express.co.uk news. Then I had a sudden pinch of curiosity, does the Home Secretary for Justice have legal background? One tends to differentiate between malicious deceit and innocent ignorance, although in governmental spheres the borderline becomes somewhat blurred. I find that Ms Truss is quite new to the legal profession. Perhaps this was a prerequisite for the job.
It may be worth explaining why the statement is SO nonsensical, and so fundamentally untrue that it brings to mind the infamous Brexit campaign with its spectacular, if yet unquantified, effect.
The Convention vs the Human Rights Act
The Human Rights Act makes the European Convention on Human Rights part of British domestic law. It makes no sense for the UK to remain a signatory to the Convention if the rights protected under the Convention cannot be enforced in British courts.
Before the Human Rights Act came into force in 2000, violation of convention rights could only be litigated in Strasbourg. This is hardly compatible with the now fashionable moto “let’s get control back”.
The Human Rights Act contains provisions on interpretation of the Convention rights and makes it a duty of public authorities to act in a way compatible with the Convention Rights. It has provisions allowing an individual to bring legal proceedings against the State where Convention rights are infringed and provides for judicial remedies. It also outlines procedures for derogations, reservations, findings of incompatibility and parliamentary procedure for compliance with the Convention principles. The articles of the Convention are listed in Schedule 1 of the Act.
Would the British Bill of Rights protect our rights in a better way?
I think the focus in this sentence is on “our”. Somehow I suspect that “our” rights will be the ability of the state to disregard the rights of the individual, without the nuisance of judicial intervention or procedural restraints. A lawyer would not call it “rights”, perhaps, “power”. But Ms Truss is the new kid on the block, as we know.
What is so inconvenient about the Human Rights Act?
From immigration perspective, the Human Rights Act is now hardly worth the bother of getting scrapped. Non discrimination provision (which stipulates that enjoyment of the rights and freedoms protected under the convention should be secured without discrimination on any grounds such as , among other, national or social origin, association with a national minority, birth or other status)has long been sent to oblivion.
In immigration context, qualified rights, such as the right to respect for private life, are a privilege of permanent residents. Qualified rights are those that may be interfered with, provided such interference is necessary and proportionate to legitimate aims of the state.
Private life of temporary residents is not protected, or rather not recognised as existing. What does this mean in practice? A very simple illustration: a foreign student is required to keep a certain amount of money in the bank for 30 days before he can extend his student visa. Accidentally there is £1 shortfall for 24 hours. As a result the student is unable to complete the course, has to give up the University, pack up his stuff and be gone “home”. Human Rights Act would at least afford a safety mechanism requiring that any decision leading to such a dramatic effect on the life of an individual should be proportionate to the legitimate aim behind the original measure (i.e. the aim behind introducing the requirement of keeping the money in a bank, and not the aim to reduce net migration at any cost).
There are also absolute rights, such as not to be subjected to inhuman and degrading treatment, the right to life, the right to liberty. Is Mrs May uncomfortable with these?
And of course, there is the right to freedom of speech which some “strong leaders” find completely indigestible. Just watch this one, as it is normally the first to crumble.
How is demise of Human Rights related to Brexit?
On the one hand the European Convention on Human Rights and the Council of Europe are independent of the the European Union. On the other hand the rights protected under the Convention form part of the Fundamental constitutional principles of the EU. The European Court of Human Rights determines the minimum level of protections expected of each member state of the Union.
These fundamental freedoms are secured on a supra national level, and this was the key concern of the Council of Europe drafting the Convention. The same idea of fundamental unassailable values was behind the European Coal and Steel Community which in 1951 formed the basis of what now is the EU.
The European Union may be compared to mountain climbers tethered together for protection. If one climber begins to fall, others can help stop the fall. There is a risk that they may all fall together. But together they are stronger and safer.
The purpose of the European Convention on Human Rights and the Communities which have now evolved into the European Union has been to protect us all from misjudgements on a national level. It would be naive and irresponsible to think that any one nation is beyond the risk on account of their good “historical standing”. Emergency lights are flashing over Britain.
You can sign a petition to save the Human Rights Act here