The Human Rights Act 1998 was introduced by the Labour Government in October, 2000. Its purpose is to codify the European Convention of Human Rights, which was created after the tragic events of World War II, into UK law. This means any human rights disputes can be resolved in domestic courts in the UK rather than the European Court of Human Rights in Strasbourg. The Act consists of what we would regard as fundamental human rights, such as the right to life, freedom from torture and inhuman or degrading treatment, and the right to liberty and security.
Fast-forward to 2015, and the new Conservative Government has outlined in their manifesto that they wish to scrap the Human Rights Act and replace it with a British Bill of Rights. What does this mean exactly? Would this lead to Britain eventually leaving the European Union? It is apparent, ties between both the domestic courts and the European Court of Human Rights will be severed as the introduction of the Bill would allow the UK to create a Supreme Court to handle all Human Rights concerns in only the UK.
The main concern, the Conservatives argue, is that the Strasbourg court is restricting the decisions made by the democratically elected Parliament. Examples include, granting a franchise to prisoners and sentencing which the European Court has intruded on. The case of Hirst v UK concerned prisoner voting, where the European Court ruled that the matter is in fact to be dealt with at a European level and not in national courts, despite it not being stated as such in the Convention. Futhermore, section 3 of the Human Rights Act states that domestic courts must take any decisions and judgements made on European level into account.
It is unclear whether the decisions made in the Strasbourg court are exemplar jurisdiction. So is the burdening excuse of the Strasbourg court appropriate enough to disregard human rights?
The Strasbourg debate has prompted mixed opinions between members and former members of the Conservative Party. Yesterday, the former Lord Chancellor, Lord Mackay of Clashfern admitted he was opposed to the scrapping of the Human Rights Act and instead suggested the Council of Europe should stop the European Court from setting aside acts of Parliament and allow it complete sovereignty. The opinion is countered by Home Secretary Theresa May and Justice Secretary Michael Gove, who admit that leaving the Convention altogether is the only way Britain can truly escape European judges ruling on British cases. This approach appears less promising and slightly unsettling, but if there is one thing the Conservatives are adamant about, it is that Human Rights will always be protected by the Government and furthermore in a possible Bill of Rights.
David Cameron will not rule out leaving the European Convention, but is eager for the British Bill of Rights to be pursued. The main advantage of this is to allow Britain to deport terrorists and foreign criminals who live within our borders because they are protected by European freedom of movement laws. Due to the increased presence of terrorist group, Islamic State, it is understandably a favoured argument, which supports public morality. However, Professor François Crépeau, a UN official thinks that once Britain begins to strip away Convention rights, it will continue to take away other rights, apparent in Nazi Germany during the 1930s. The only way this could be overcome, is by the British Bill of Rights containing precisely the same rights as laid out in the Human Rights Act 1998. With the issue heavily opposed by international officials, at national level it is plausible the Bill may only receive support in England, where the Conservative Party form the majority Government.
The First Minister of Scotland, Nicola Sturgeon, has declared she will support the parties that are opposed to the Conservative’s plan to abolish the Human Rights Act. With 56 SNP MPs present in Parliament, alongside determined Labour and the Liberal Democrat MPs, all could help block the Conservative’s anti-European Convention fight. The Scotland Act 1998 relies on all legislation in question to be compatible with the European Union Convention rights.
Is it entirely fair for the UK Government to debate the founding Act of the Scottish Parliament? In this respect, any Human Rights reform would violate the Sewel Convention, an important devolution settlement. The Convention establishes that Westminster will not legislate on devolved Scottish matters without its consent. With Human Rights being partially devolved to the Scottish Parliament, consent would be required, which is highly unlikely with the surge of SNP MPs present in Scotland.
With the new Scotland Bill expected to codify the Sewel Convention into law, it is likely to be enforced before the repealed Human Rights Act is declared. A probable no vote from Scotland coupled with the split opinion of the Conservative cabinet, this commitment of David Cameron is appearing to be the most dubious of his manifesto declarations yet.
Sources:
https://www.conservatives.com/~/media/files/downloadable%20Files/human_rights.pdf
http://www.theguardian.com/law/2015/jun/01/human-rights-act-repeal-tory-peer
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Alix Staines
Alix is a law student currently studying at the University of Edinburgh. She has a passion for writing in her spare time and writes a successful beauty and lifestyle blog. In the academic year of 2015/16, she will be taking part in her Erasmus year in Leuven, Belgium.
