Advocates of scrapping the Human Rights Act (HRA) put forward a number of reasons as to why this should happen, some of which are supported by a perfectly legitimate rationale. Arguments focus on principles such as national sovereignty, parliamentary sovereignty over the courts and obeying the rule of law.
The European Court of Human Rights has clashed many times with Parliament and the courts due to historical, cultural and philosophical differences in the way these principles are applied. Heavily publicised and notable instances include the laws on prisoners voting and the deportation of terror suspects. While in isolation these difficulties may foster support for scrapping the Act, there are also good reasons why it should remain. Family law in particular is heavily intertwined with the Human Rights Act and scrapping it could have serious implications for issues related to child care for example.
The Law Society has also argued against recent calls to scrap the Human Rights Act and articulated why, despite its imperfections, it is worth keeping. It also asserts that current misconceptions about the Human Rights Act and its legitimacy need to be addressed by a programme of public education and debate and by the setting up of standing committee on Human Rights.
Why Retaining an Promoting the Act is Better Option
The Human Rights Act, which came into force in 2000 enshrined in UK law the rights protected in the European Convention on Human Rights. The Government’s call to replace the Human Rights Act with a British Bill of Rights is part of a broader agenda set on taking back a degree of control over the implementation of UK law from the EU. Speaking in 2006 David Cameron said that he wanted to entrench a British bill that was ‘passed in our parliament [and] rooted in our values’.
Law Society president Andrew Caplen noted that, ‘the Human Rights Act ensures that the rights included in the European Convention on Human Rights are enshrined in UK law’. He suggested that it is effective because it strikes a difficult balance between safeguarding fundamental rights and preserving parliamentary sovereignty.
Put simply, the suggestion is that the Human Rights Act already fulfils the functions that the proposed replacement bill would purport to fulfil; namely, it enshrines in a single consolidated document principles reflecting long-established British values.
The Difficulties of Replacing the Human Rights Act
Supporters of the Human Rights Act believe that replacing the HRA with a Bill of Rights may potentially have negative consequences. For instance, it would lead to unnecessary duplication and thus to complication in the protection of human rights because any new Bill of Rights would necessarily incorporate many of the protections already contained in the HRA.
Additionally, to resolve conflicts between any new provisions in the Bill of Rights and those in the HRA or between the jurisdictions responsible for enforcing the different rights from the different sources, it would need to be decided what status one document would have in relation to the other.
On balance it probably makes sense for the UK to retain the HRA and push for changes within that framework. A UK-wide Bill of Rights may be difficult to achieve and could risk cutting across local processes and sensitivities in the UK’s devolved nations, while the creation of separate bills for the different nations would be overly complex.
Constitutional changes may also threaten the stability of the Union itself as they could be viewed as an attempt by Westminster to centralise power or as an opportunity for the devolved nations to bargain for greater autonomy, risks highlighted by the recent Scottish referendum.
The Human Rights Act covers a huge swathe of legal issues in the UK, particularly in areas such as family law. For specialist advice about the effects of the Human Rights Act on specific family law issues please contact Jeetesh Patel via e- mail JPatel@rollingsons.co.uk or by telephone on 0207 611 4848.