Scrapping the Human Rights Act – What is it all about?

The media has been awash with stories about the Human Rights Act 1998. The Conservative Government’s manifesto stated that it would “scrap the Human Rights Act and introduce a British Bill of Rights”.

So what is it all about?

The Human Rights Act 1998 incorporates the European Convention on Human Rights 1951 (the ECHR)  into English Law. It came into force on 2^nd October 2000.

There are 14 Convention rights: right to life; freedom from torture and inhuman or degrading treatment; right to liberty and security; freedom from slavery and forced labour; right to a fair trial; no punishment without law; respect for your private and family life, home and correspondence; freedom of thought, belief and religion; freedom of expression; freedom of assembly and association; right to marry and start a family; protection from discrimination in respect of these rights and freedoms;  right to peaceful enjoyment of your property; right to education and right to participate in free elections.

Plans to repeal the Human Rights Act were not included in the Queen’s speech on 27^th May 2015, giving rise to some confusion. The Government’s briefing was that they are in “no rush to replace the Act with a British  Bill of Rights” and they are committed to the introduction of a British Bill of Rights. This apparent backtracking may be to do with the fact that many prominent Conservative MP’s have stated an intention to rebel if the legislation were introduced. Supporters of the ECHR point out that it was actually a Tory MP who drafted the original convention.

Since the introduction of the Act there has been criticism from both the left and the right. Home Secretary Theresa May incorrectly claimed in 2011 that an illegal immigrant could not be deported because of his cat.  A former Home Secretary Labour’s John Reid argued that the Act hampered the fight against terrorism in declaring Control Orders to be in breach of the Act.

Following the Queen’s speech headlines in the Sun, the Express and the Daily Mail were highly critical of the Prime Minister. The Sun declared: “European Court puts terrorists and murderers first: why is Cameron dithering over this farce”.

Before the ECHR became law in the UK, people who claimed that their human rights had been breached by a public authority (state institutions such as the police, courts, schools, hospitals etc) had to apply directly to the European Court of Human Rights in Strasbourg. This was a lengthy and costly process.

By incorporating convention rights into domestic law, a person can apply to the UK court.  When considering a case the Human Rights Act provides that the court must:-

1. Interpret the law, as far as possible to do so, in a way that is compatible with HRA rights.
2. If an Act of Parliament breaches these rights, the court can declare legislation to be incompatible with rights.
3. It is unlawful for any public authority to act incompatibly with human rights, and anyone whose rights have been violated can bring proceedings against a public authority.

What is clear is that a court cannot override legislation which is not compatible with the Convention rights. The headlines intimating that judges in human rights cases are riding roughshod over the law of the land are simply untrue.

If the Government repeals the Human Rights Act, we will be back in the position we were before October 2000. Applications could still be made to the Strasbourg Court. The only way this could be prevented would be if the UK withdrew wholesale from the ECHR; a move which is likely to be strenuously opposed by politicians of all persuasions considering the history of the Convention.