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The aim of this essay is to contrast and analyse two very different concepts that both aim to achieve the same outcome. The focus of the essay will be on the Human Rights Act and whether or not this act should be replaced with a British bill of rights. This is a topic which currently is being discussed throughout all levels of society and politics, especially considering David Cameron and the conservative party now hold a majority. This is important due to the fact that David Cameron and the conservative party are the political party which are spearheading the campaign for replacing the Human Rights Act with a British bill of rights. This essay will firstly define and explore what exactly a bill of rights is. Furthermore it will explain the difference between a bill of rights document and the Human rights Act. Additionally it will explore the arguments for and against replacing the Human rights act, before finally exploring the current social and political climate and its views on the subject.
Before exploring the Human Rights act it is important to analyse and detail what features are common within a bill of Rights. A bill of rights would become fundamentally entrenched within the system. This means that there is no potential for future governments to change or modify the bill, therefore ensuring longevity of the document. Furthermore the actual drafting process of the document would be fundamental. The attention surrounding the drafting process would be phenomenal, and this in turn would actually benefit the British society as it would allow for them to criticise and become advisor like to the commission in which is granted the opportunity to draft the bill, similar to the Canadian model. This in turn would produce a document which is reflective of societyâs demands and would allow the creators of the document to evaluate what rights are fundamental, and most important to society as a whole and would potentially allow the judiciary to interpretive in a less restrictive approach.
The concept of Human rights became the main focus of international laws and conventions post World War 2. Defining human rights with a definition is a complicated task due to the concept itself being one of constant evolution which parallels societyâs constantly developing nature. However Hoffman and Rowe define human rights as âFundamental freedoms and entitlements that each person
possesses by virtue of nothing more than their status as a human beingâ1. The âfreedomsâ and âentitlementsâ referred to by Hoffman and Rowe were safeguarded through the enactment of the European convention on Human Rights. This was a charter which outlined what each member states citizensâ should have the right too without prejudice just because their humans. E.g. âright to private lifeâ2. The Human rights act 1988 was a legislative document which the UK introduced as a vehicle that allowed the European convention on human rights to be incorporated into domestic law. This was seen as amazing social progress as previously the United Kingdom although being regarded as one of the best countries when it came to protecting human rights, in fact had no actual document guaranteeing the protection of Human rights. However this key feature is where the first area of argument and debate about replacing the human rights act arises. The Human Rights act is only a document which allows for a foreign institution (European Union) to prescribe rights onto the citizensâ of Britain. However a key argument in favour of having a British bill of rights is centred on the accessibility of the document. The Human rights act is another document wrapped up in the current web of British legislation, trying to get information on the current legislation being passed or previous legislation is a complicated task. However as Robert Blackburn explains the best option to solve this complicated problem is too implement âa single document of basic law easily accessible and intelligible to allâ3. A British bill of rights would prove to be an easier tool of accessibility for the general public, who should be able to have clarity and knowledge when dealing with the legislation of their country.
The issue of replacing the Human rights act is at the forefront of every form of social media, newspapers and debates within politics, therefore it is safe to assume that the concept of Human Rights is extremely important. However the Human Rights act can be viewed as just another
1 David Hoffman and John Rowe Q.C,Edition) 3 An introduction to the Human rights act 1988 (Second 2 European Convention on human rights (1950) 3 Robert Blackburn âEnacting a Written Constitution for the United Kingdomâ (2015) 36 (1): 1 > https:// www.lexisnexis.com/uk/legal/results/enhdocview.do?docLinkInd=true&ersKey=23_T23090087309&format=GNBFULL&startDocNo=0&resultsUrlKey=0_T 087364&backKey=20_T23090087365&csi=302219&docNo=2&scrollToPosition=0<
protecting individuals against public authorities, which is a key argument for keeping the Human rights act as opposed to replacing it. Furthermore itâs important to note that Parliament was aware of these illicit recordings and choose not to act, whereas the European courts choose to take action. This case gives a small insight into the potential power struggle between the domestic courts and the European courts, which is a key argument for repealing the Human Rights Act. Under the Human rights Act, The UK population had the opportunity to take any case which violated their human rights under the ECHR to the European court in Strasbourg after all other options were exhausted. All public services and the judiciary had to operate and function in accordance with the principles laid out in the European convention on human rights. This is highlighted by section 3 of the human rights act where it states âSo far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rightsâ7. Therefore it is important to understand that through the enactment of the Human Rights Act, all public services and the Judiciary now had to act in accordance with a foreign institutions policies, therefore a potential transfer of power from domestic authority to foreign authority took place. As explained in the case of Sheldrake v DPP âThe interpretative obligation under section 3 is very strong and far reaching and may require the judge to depart from the legislative intention of Parliamentâ8. This can be interpreted as an argument for or against repealing the Human rights act, it is evident from the case previously stated that having an institute which operates outside of domestic law can be beneficial to an individual as the foreign court operates only through their direct policies and the convention rights which have been laid out. However the negative side to this argument can be viewed as the domestic courts losing their own independent authority to interpret the legislation passed through parliament and act accordingly within the legislation passed.
A key point of discussion and potential argument for removing The Human rights act focuses on the concept of parliamentary supremacy. Dicey Explains parliamentary sovereignty to be âThe principle
7 Human Rights Act 1998, s 38 Sheldrake v DPP [2004] UKHL 43
of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliamentâ9. Essentially Dicey is explaining that under the âEnglish Constitutionâ parliament is the supreme power when it comes to law making and no other organisation can challenge this. Therefore a potential argument for repelling the Human rights act and replacing it with a British bill of rights is that the Human rights act derives power from parliament and places it in the control of a foreign power i.e. Europe. This argument is sourced mostly from the right side of the political spectrum, most notably David Cameron the current Prime minister and his political party the conservatives. Their ideology on this subject is best explained by analysing the conservative parties 2015 manifesto, it states âWe willâŚscrap the Human Rights Act and curtail the role of the European Court of Human Rights, so that foreign criminals can be more easily deported from Britainâ10. The key aspect from this part of the manifesto is the aim to âcurtailâ Europeâs power. The Conservatives believe the Human Rights Act has reduced parliamentâs sovereignty, this is evident by highlight one of the key objectives which were published by the conservative party âIn future, the UK courts will interpret legislation based upon its normal meaning and the clear intention of Parliament, rather than having to stretch its meaning to comply with Strasbourg case-lawâ11. Therefore the questions arises whether or not David Cameron and the Conservatives are motivated by protecting the rights of British citizensâ or whether there motivated by simply having more domestic power and not having to be influenced by Europe. The conservatives know that by replacing the Human rights act they will effectively have reduced the authority of the European convention on human rights and European Court of rights over the UK, thereby allocating more power to domestic authorities.
However it is important to analyse this argument presented to us. In 1988 the year the Human rights act was enacted, Nicholas Bamforth published a journal that was focused on how the act worked, and
9 Albert V.Dicey10 Conservative Party 2015 Manifesto < https://s3-eu-west-1.amazonaws.com/manifesto2015/ Introduction to the Study of the Law of the Constitution (Eighth Edition 1982) 3- ConservativeManifesto2015.pdf > Accessed 24/11/201511 Conservative Party 2015 Manifesto < https://s3-eu-west-1.amazonaws.com/manifesto2015/ ConservativeManifesto2015.pdf > Accessed 24/11/
was a useful tool for the individual as highlighted previously when it came to taking public authorities to court. However a British bill of rights with the right motivation and intention has the potential to be the greatest tool of accountability for any future executive decision, parliamentary statues or judiciary decision. This is a major argument in repealing the Human rights act and as Zander explains this is how this would function in reality âthe courts could declare provisions in Acts of Parliament to be incompatible with constitutional rights, leaving it to government and Parliament to decide whether to amend the lawâ14. This accountably is also provided by the Human Rights Act however the party in question would be accountable to Europe, therefore with a British bill of rights the relevant party would be accountable to a domestic organisation who would act in accordance with the policies laid down in the solidified constitution therefore instilling a sense of national independence instead of reliance on a foreign institution. This instilment of national independence is the core of any main argument relating to the formation of a British bill of rights.
National independence is a controversial topic throughout Northern Ireland who crucially would be involved in the creation of a British bill of rights, if not at least granted their own executive bill of rights. However this would be a complicated task due to the fact that Article 2 of the Good Friday agreement commits the British government to âcomplete incorporation into Northern Ireland law of the European convention on human rights s with direct access to the courts, and remedies for breach of the conventionâ15. This essentially means that if Britain were to repeal the Human Rights act it could leave Northern Irish citizensâ with no formal document which could safeguard their rights. Additionally it is important to note that the Human rights act focuses mainly on the individual as opposed to minorities. Northern Ireland is becoming increasingly more diverse therefore it can be argued that replacing the Good Friday agreement and the Human rights act with a bill of rights will offer more protection to the current minorities in our society. Interestingly under the Good Friday agreement a commission was set up to advise the secretary of state as too what rights should be
14 Michael Zander, âWill it ever come to pass?â (2015) > https://www.lexisnexis.com/uk/legal/results/enhdocview.do? docLinkInd=true&ersKey=23_T23090223564&format=GNBFULL&startDocNo=0&resultsUrlKey= 0_T23090223567&backKey=20_T23090223568&csi=281950&docNo=1&scrollToPosition=0 <Accessed 25/11/ 15 Good Friday agreement 1998, s
included into any potential bill of rights. The paper was published in 2008 and recommended the including of many protocols from the European Convention on human rights. However after multiple commission reports there has still been no movement taken on whether or not there will be a Northern Irish bill of rights. Additionally it is important to analyse the implications Scotland may face if the Human rights act was to be repealed. The Sewell convention prevents Westminster from ruling on any legislation which concerns itself with domestic issues. However it can be argued that the Sewell convention is not relevant here due to human rights being an external issue, not one of a domestic nature. However the scope of the Sewell convention is wide, therefore any legislation which may affect the Scottish parliamentâs ability to rule freely can be deemed to be in conflict with Sewell convention. This aspect combined with the fact that the Human rights act is safeguarded under the Scotland act makes creating a British bill of rights extremely complicated.
The arguments for repelling the Human rights act and replacing it with a British bill of rights are vast, complicated and complex. The main argument against introducing a British bill of rights is that The Human Rights Act already provides adequate protection for an individuals rights, the act also allows for an individual to challenge the ruling of a domestic court and to hold public authorities accountable through the court in Strasbourg. Additionally with the devolved states there would be a high level of complexity upon introducing or even creating any bill of rights. The main arguments for introducing a British bill of rights include the issue of parliamentary sovereignty or perceived lack of, having a solidified document would be more accessible and would provide clarity to the public. It would also provide guidelines for the executive on how to govern while also placing human rights at the forefront of politics by placing this issue on such an important document. However while the arguments for replacing the human rights act are solid, the conservatives are motivated by achieving complete sovereign freedom the European union, thereby allowing them to govern without the shackle of the European courts. Therefore to conclude, a British bill of rights may be the right option however the motivation to enact this bill must be fuelled by a motivation to safeguard and enhance human rights not motivated by a political parties desire to have more power.
