Why hate Human Rights? Understanding the case against the Human Rights Act

This post was contributed by Dr Frederick Cowell, lecturer in Law at Birkbeck. Dr Cowell’s forthcoming book, ‘Critically Understanding the case against the 1998 Human Rights Act’ is due to be published by Routledge in February 2017. Here, Dr Cowell offers an insight into his current research project behind the book.

The 1998 Human Rights Act is one of the most controversial and misunderstood pieces of legislation in recent history. The Act brought rights contained in the European Convention on Human Rights (ECHR), into UK law, allowing them to be used in UK courts. Britain had been a party to the ECHR since the 1950s – Winston Churchill helped shape the Convention and was one of its early supporters – but until the Human Rights Act came into force the EHCR had no force in UK courts.

The Act has come in for a wide variety of criticism on legal, constitutional, political and cultural grounds. In the late 2000s this escalated significantly when politicians seriously considered proposals for its abolition. Media stories about the Human Rights Act have assumed near mythological proportions claiming that the Act gives criminals a right to demand fried chicken from the police and prevents foreign nationals from being deported if they have a cat.

Human rights in the headlines (Images cc Huffington Post)

Human rights in the headlines (Images cc Huffington Post)

Reviewing the recent history of the Act

There was a Commission on a Bill of Rights set up in 2012 which delivered a mixed report with some members of the Commission arguing for a Bill of Rights to compliment the HRA and others arguing that there was no need. The Conservative Party’s proposals for a British Bill of Rights published in 2014 is predicated on repealing the Human Rights Act and replacing it with an instrument that would give more power to the government and limit the number and type of individuals who would be able to make human rights claims.

The Conservative Party had a commitment to repeal the Human Rights Act in their 2015 General Election Manifesto and after they won a majority committed to swiftly publishing proposals for a British Bill of Rights. This has since been pushed back and there is little certainty on when these proposals will be published.

During the debate about the referendum on the UK’s membership of the European Union various government ministers have expressed contradictory positions on whether the UK should remain part of Council of Europe – the ECHR’s supervisory body, which is a separate institution from the EU. On Monday the House of Lords EU Justice Committee issued a report criticising the limited aims of the bill of rights project recommending that it in its current form it should be abandoned.

About the research project ­ – What’s wrong with the Human rights Act?

This led me to launch a research project last year that asks just what is wrong with the Human Rights Act that necessitates its replacement. This is important as so much of the debate about a British Bill of Rights, and indeed a major reason why this debate is taking place in the first place, is due to the supposed inadequacies and unpopularity of the Human Rights Act. In spite of a range of hostile media coverage, which has cemented certain myths about the Human Rights Act, polling shows that the public remain broadly supportive of the Act and strongly support the universal applicability of certain rights, such as the right to a fair trial. However, in connection to certain issues, such as whether serving prisoners should have the right to vote, the public are a lot more hostile towards the Human Rights Act and human rights in general.

Dr Frederick Cowell

Dr Frederick Cowell

This project is an edited volume with contributors from academia and practice, critically analysing the arguments levelled against the Human Rights Act. There are several main strands of argument in the case against the Human Rights Act. The constitutional argument, which has been made principally by legal and constitutional experts, contends that the Act is dangerously distorting crucial elements of the UK’s constitution. Others have argued that UK’s tradition of common law rights and civil liberties make the need for rights protection by the ECHR superfluous.

Equally there has been scholarship from the other direction suggesting that the Human Rights Act has enhanced the UK’s constitution or is part of its gradual evolution. These arguments are evaluated alongside high profile issues, such as immigration and terrorism, where the Human Rights Act is widely criticised. Some of these arguments are predicated upon pervasive media misrepresentations about human rights and organisations such as Rights Info have endeavoured to unpick some of these myths. What this work aims to do is examine these arguments in depth and see how a Bill of Rights would be any different in these cases.

Whilst the plans for a British Bill of Rights remain uncertain understanding why hostility to the Human Rights Act occurs and the social and legal structures that are behind it, helps better understand the role that human rights play in society and the challenges that different mechanisms for rights protection might face.

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