Wednesday, 5 October 2011

Why Tories Want To Scrap The Human Rights Act

Last night, a friend asked me why the Tories are so keen to get rid of the Human Rights Act, and what effect replacing it with a Bill Of Rights would have. I thought it might be useful to people if I re-posted the email I sent him here:

(N.B. This was done off the top of my head in quite a short time, and I don't have access to my beloved legal textbooks at the moment, so it doesn't go in to great detail, but I will update this post when I have got them back to provide more references and detail and generally clear it up a bit.)

Right, I don't know how much you know about the Human Rights Act, so I'll start from the beginning:

The main task of the HRA is to incorporate the European Convention on Human Rights into UK law. This is a condition of accession to the EU - all new member states must sign up for it. The HRA can be used against any public body, and section 3 provides that all legislation of the UK must be drafted and interpreted with the HRA in mind to make sure it complies - the UK can face sanctions from the ECtHR if it fails to re-do legislation that it has been advised does not comply - see prisoner voting.

Even if we didn't have the HRA, we would still be a signatory to the ECHR, and it's very difficult to see how they would get around this, but one effect of scrapping the HRA would be that the only way HR breaches could be remedied would be by the European Court of Human Rights - and this is a remedy that is very time and labour consuming - not to mention way too intimidating for most pro-bono/legal aid lawyers, who usually take breaches to the UK courts (with the ECtHR being at the top of the appeals process).

The Tories talk a lot about replacing it with a 'Bill of Rights'. This is a smokescreen - the ECHR is universal and applies to all public bodies. A BOR could exclude situations (i.e. 'this right does not apply if the person concerned is suspected of breaking a law'), people (i.e. 'this right applies only to full citizens of the UK') or public bodies (i.e. 'the police force of the UK are not bound to uphold these rules'). This is my main concern. 

There's a bit more to it than that, but that's the basic overview.

Hope this is helpful to anyone who was a bit confused. Like I say, will post properly on the matter in a couple of weeks, but after Theresa May's horrific speech yesterday, I thought the basics could do with being stated now.


  1. It doesn't really answer your friend's question (and, not being a Tory yourself, you're not the one to ask), but it's a useful summary nonetheless.

    The other question is, does the HRA go beyond the ECHR? If not, then it's game over, unless you want to renegotiate the ECHR (good luck with that one Theresa) or leave the EU.

    There are two valid reasons for at least debating the issue. The first is sovereignty. There is a perception that too much of our governance is now dictated by a convention devised outside this country by people who were not elected here, thus undermining what democracy we have.

    The second is the reputation of Human Rights as a concept. I was reading about the Uman and Vinnitsa massacres last night ( The ECHR was devised to stop that sort of thing happening. If the Act is invoked to force the NHS to treat your ingrowing toenails then the whole idea of human rights falls into disrepute, and that should never be allowed to happen.

    Even if those perceptions are totally wrong, there still needs to be a debate in order to counter those perceptions. Whether those are the Tories' real reasons is another matter.

  2. Yes, I should have mentioned that the ECHR was originally mainly drafted by lawyers from the UK. As I say, this was just something I bashed out in ten minutes. You make a good case for debating the issue, but the problem is that a) a lot of people really don't understand what the HRA is (oh how I wish Law and Politics were compulsory in schools) and b) the people with the platform to educate them are exactly the kind of disingenuous shits like Theresa May who will propagate misinformation for their own ends (see: 'That cat incident'). I've never met a person who properly understood the HRA who wanted to scrap it. (Then again, I don't associate with Tories)

  3. It's also worth noting that the ECHR is a Council of Europe agreement and has nothing to do with the EU. Even if the UK were to leave the EU tomorrow, the ECHR would still apply.

    Not only was the ECHR drafted by UK lawyers (the rights contained in are largely those developed through English Common Law) but the UK government, in particular former Tory leader Winston Churchill, was the driving force behind the Convention.

    All of which emphasises how hypocritical the Tories are in attacking the HRA to appease the far right press.

  4. If the Act is invoked to force the NHS to treat your ingrowing toenails then the whole idea of human rights falls into disrepute, and that should never be allowed to happen.

    I know this is hyperbole but if you reframe that as "give you access to a reasonable standard of medical treatment within a reasonable time frame", it comes much closer to what people think of as being a human right. And when you investigate properly, most cases are much more reasonable requests that government agencies are ignoring in the hope people will shut up and go away (or even die off in the case of elderly people).