When the idea of repealing the Human Rights Act (HRA) transformed from mere speculation to a real possibility following the 2015 general election, the response was mainly of alarm and indignation. Fears have been raised that without the Act, the United Kingdom will no longer offer adequate protection of human rights and risks falling out of step with the rest of Europe. Upon closer analysis, this fear is unfounded, because far from allowing human rights to be abrogated, repealing the Act makes way for these rights to be protected and promoted in a domestic context with a purely domestic focus, controlled and exercised domestically, in a way fully adapted to the British political system.
In 1950, the United Kingdom became a signatory of the European Convention on Human Rights (ECHR), and since 1966, British citizens have been able to challenge domestic laws against the Convention on a European level, in the European Court of Human Rights (ECtHR). However, this was a costly and lengthy process, in that the individual would first need to exhaust all domestic avenues of appeal. In order to remedy this, Parliament passed the Human Rights Act in 1998, which incorporated into domestic law the rights contained in the ECHR, so that British courts would be able to offer remedies for breach, eliminating the need to appeal to the ECtHR. If a Court finds that UK legislation is inconsistent with the Convention, the HRA gives it two options. The Court is first under a duty to interpret the piece of legislation, so far as possible, consistently with the Convention right, and if this is not possible, it has the option of issuing a declaration of incompatibility – a warning to Parliament signaling a breach of human rights. Such a declaration does not affect the validity of the legislation; it merely gives Parliament an opportunity to, if it so wishes, amend it.
The main argument for repealing the Act is that it offers an unsatisfactory compromise between giving the judiciary too little and too much power. While many jurisdictions allow courts to strike down legislation that is deemed contrary to human rights, the HRA does not, and Parliament is under no obligation to take action. From this point of view, the Act gives the Courts very little power to enforce human rights compatibility.
From the opposite perspective, however, the judiciary also has the duty to interpret legislation, so far as possible, consistently with the requirements of the Convention. Thus, a piece of legislation unequivocally barring the use of victim testimony in rape trials was, in one case, re-interpreted so that “this evidence is inadmissible” became “this evidence is inadmissible unless withholding it would impact the fairness of the trial”. It is evident that barring the courtroom use of victim testimony is designed to protect the dignity of the victim, while admitting it promotes a fairer trial for the defendant. These opposing policy factors are equally meritorious, and Parliament, the elected representatives of the country, has chosen unambiguously to protect the victim. The Human Rights Act allows unelected judges to go against the express wishes of Parliament by re-interpreting legislation in this radical way.
Many human rights issues that engage the HRA are divisive and controversial – morally sensitive questions regarding euthanasia, bans on political advertising, and the balance between national security and suspected terrorists’ right to a fair trial are frequently addressed by British courts. Repealing the Human Rights Act would mean that Parliament, controlled by and accountable to the people, will get the final say on these issues, and will be free to choose to protect the ones that are most important to the nation as a whole.
Further, the HRA obliges domestic courts to take into account the decisions of the ECtHR in Strasburg, which hears cases from many different countries with distinct political systems. Many cases that arise domestically have never been addressed by Strasburg, holding British courts back or otherwise leaving them to lengthy speculations as to how Strasburg is likely to decide. Moreover, many of the ECtHR’s decisions are detrimental to or simply incompatible with domestic processes, and repealing the Act would mean that our courts will be free to develop our own human rights law unhindered by external jurisdictions.
Many fear that abolishing the Human Rights Act would strip the UK of all human rights protection, but this is simply false. There will remain, in addition to the new British Bill of Rights, many avenues where individuals can assert their rights before a court. Domestically, common law protection of human rights, which precedes the Human Rights Act by centuries and is still developing, will continue to function as a safeguard against injustice. Further, abolishing the Act will not remove our status as a signatory of the ECHR, so that in the future, individuals will still be able to enforce their rights before the Strasburg court. Most importantly, however, the new British Bill of Rights will offer protection more suited to the British political system, and will be closely scrutinized by the electorate and the nation itself.
Chen Chen is a contributor to the OxPolicy blog.