Human Rights Act and Bingham’s Question: which rights are we to discard?

So the Human Rights Act and the European Court of Human Rights are in the news.

One Tory Minister wants to repeal the Act, and another wants us to withdraw from the Court.  The extent to which either of these propositions make sense is expertly set out by Adam Wagner, perhaps the UK’s leading legal blogger.

The proposals are depressing on two levels.

First, it is clear that such calls are gesture politics.  The Tories have lost a by-election and feel the need to play to the audience.  There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.

Second, it represents a failure by those in favour of human rights law.  It is now over twelve years since the Act took effect, but still uninformed and misleading statements about human rights law are made by those who should know better and circulated by those who could not care less.

But since 2000, human rights have become part of the mainstream in litigation.  Even Associated Newspapers has sought to rely on its Article 10 right to free expression under the ECHR (see paragraphs 33 and 36 here).   But the frequent use of human rights law in the courts has not been matched by a more informed public debate.

Indeed, one of the shortest conversations one can have in British politics is when a critic of human rights is asked to be specific as to which rights under the ECHR and provisions of the Human Rights Act should be abandoned.  It is almost as “human rights” is a hobgoblin with no more substance than is necessary to scare us.

In fact, the Human Rights Act is an instrument which should be commended by those who want the UK courts to decide things instead of Strasbourg.  The Act’s existence has made it rare for applicants to go to the European Court of Human Rights, and the case law developed by UK judges in UK courts since 2000 means that Strasbourg jurisprudence has become less relevant.  The Human Rights Acts also provides that UK judges cannot disapply primary legislation on human rights grounds, and so the supremacy of parliament is maintained.

And as for the convention rights themselves, which ones should we not have as protections?  As the late Lord Bingham said in a lecture which should be read in full by anyone interested in the human rights debate:

The rights protected by the Convention and the Act deserve to be protected because they are, as I would suggest, the basic and fundamental rights which everyone in this country ought to enjoy simply by virtue of their existence as a human being.

Let me briefly remind you of the protected rights, some of which I have already mentioned.

The right to life.
The right not to be tortured or subjected to inhuman or degrading treatment or punishment. The right not to be enslaved.
The right to liberty and security of the person.
The right to a fair trial.
The right not to be retrospectively penalised.
The right to respect for private and family life.
Freedom of thought,conscience and religion.  Freedom of expression.
Freedom of assembly and association.
The right to marry.
The right not to be discriminated against in the enjoyment of those rights.
The right not to have our property taken away except in the public interest and with compensation.
The right of fair access to the country’s educational system.
The right to free elections.


Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British? 

There may be those who would like to live in a country where these rights are not protected, but I am not of their number.
Human rights are not, however, protected for the likes of people like me – or most of you. They are protected for the benefit above all of society’s outcasts, thosewho need legal protection because they have no other voice – the prisoners, the mentally ill, the gipsies, the homosexuals, the immigrants, the asylum-seekers, those who are at any time the subject of public obloquy.

Here Lord Bingham nails it: just which of these rights do we really wish to discard?


Comments are pre-moderated. No purely anonymous comments will be published; always use a name for ease of reference by other commenters. Other comments published at my absolute discretion.

28 thoughts on “Human Rights Act and Bingham’s Question: which rights are we to discard?”

  1. It’s perfectly possible to object to the HRA and the ECHR on grounds other than wanting to get rid of any of the rights they recognise – I’m not generally in favour of people stealing things, but I’d think that a Theft Act that simply said “Don’t steal” would be a pretty poor bit of legislation.

    The main problem with the convention is that it doesn’t take the trouble to define what, for example, “respect for private and family life” actually means in practice. It leaves a great deal of scope for poor decisions to be made, erring in either direction, and that brings what should be an admirable idea into the sort of disrepute that it finds itself now.

  2. “just which of these rights do we really wish to discard?”

    The question obviously isn’t only about which rights you have and which not; more relevant is how to interpret those rights – what do they mean. Some of the interpretations have been a bit strange. Like that people who have convictions for severe crimes (violence, drug dealing) but cannot be deported due to “right to family life”. Their actual family life may mean that they have conceived children with several young girls, but aren’t living with them or the children, and are not supporting these “families” in any way. That duty falls on the taxpayer. It seems like a misuse of this right.

    1. I don’t know about the felon, but I would suppose their family has a right to family life where the person is in contact. As they say, hard cases make bad law.

  3. I would speculate that it is not that these right-wingers want to discard any of these rights, just that they wish to withhold them from people they don’t like.

  4. Another useful post. Thanks. Am I correcting in thinking that even if the saber rattlers had their way; if Parliament repealed the HRA; if we withdrew for the Council of Europe and then renounced all of our other human rights obligations under international treaties, that it might make little difference? Surely a body of jurisprudence has been developed, especially since 2000, which is now part of the common law of England and Wales. Or can Mrs.May repeal the common law as well?

  5. Thank you for highlighting a speech, that has no correlation with the argument for the human rights law staying as they are. I say this as a layman with no legal training, only an opinion. The human rights act is an awful piece of over governance that has muddied the waters of European law ever since it was introduced, as it has no full definition of what each right actually contains. I.e the right to have freedom of speech, in England, can be shown by an Islamist preacher in his Mosque, teaching the Koran. He walks outside and decides to talk to non-Muslim’s about their impending death in the battle for Muslim survival. I disagree with him, but I understand that free-speech is greater than suppression of ideas, so let him carry on. Now a Dutch man, a politician, voted in freely, by his peers and countryman is not allowed into this country to speak freely?? Who has had their human rights attacked??

    These human rights that are spoke of are , I feel, a schism of human nature, where abstract judges and lawyers decide policy, without living in the midst of the social/economic/religious problems that lead to situations thus….

    In closing I wish to ask a general question, of the judges sitting on the panels, of the people pronouncing “rights”. Do you live near another lawyer or do you live in a Multi faithed town? With Muslim, Sikh, Jew and atheist nearby all mixing gently, observing the same rights you hold dear and profit from??

  6. How does one argue, as one who thinks that human rights are not inviolable and that can be forfeited, with an institution such as the ECHR whose sole existence is based on the premise that they are not and never can be?

    I have some ideas, but wonder whether this is the place to air them.

  7. Are you (and Lord Bingham) being disingenuous?

    We should get rid of all the rights listed above. Take the first one: the right to life. We have statutes that make murder illegal. That’s quite enough. If we, as a society, wish to extend protection in some way, we can pass a law in Parliament to give effect to that wish.

    Everything else is at best airy bullshit and at worst a device to transfer law-making power from democratically-accountable legislators to unelected judges with their own minority obsessions and prejudices.

    1. Lord Bingham actually says as much, but applies it only to the idea that there should be a counterbalancing set of responsibilities to go with rights: “But a statute, or a constitutional document, should lay down clear, enforceable rules. It is not a place for making gestures, however well intentioned. I am not for my part clear what new duties or responsibilities are thought to require legal enforcement.”
      I’m rather taken with Gordon’s implication that we should be free to do whatever we like, unless specifically prohibited by law.

  8. Well, I’ll venture to offer them anyway, at the risk of never having them appear here, post-moderation.

    I think ‘human rights’ should be abolished as an idea, along with their associated, self-aggrandising, often incoherent institutions that depend on, for their very existence, these ‘rights’. Justice does not require more than itself. Let’s begin this whole thing over. It’s gone nauseatingly wrong, when James Bulger’s psychopathic murderers, having also destroyed the lives of all who were related to him, walk in anonymity and in freedom because of an ECHR decision, an institution founded on the principle that ‘human rights’ exist and are inviolable. The only way to combat these monolothic ideologically pernicious institutions – far away from the administering of justice as they are too often – is to take away their very premise. I, for one, renounce, any imposed ‘human rights’ I have. Gone. Now, who’s next? Go on, you know you want to.

  9. I don’t want the HRA to be repealed or to withdraw from the Convention but I could do without “The right to marry”.
    “The right not to have our property taken away except in the public interest and with compensation” seems hobbled from the off.
    I’m not sure why “The right of fair access to the country’s educational system” is a ‘basic’ right, but access to a health or welfare system isn’t.
    But the real issue, as I suspect you well know, is that these rights often conflict with each other and that they are not absolute; that they often involve judgement and discretion that can cause bitter disagreement on meaning.
    Should someone not to go prison or be deported because they have a family, while a single person might not be afforded the same? That may be respecting family life, but it is also discrimination in enjoying the rights.
    To what extent should freedom of expression be suppressed by the right to a fair trial? #CarefulNow

  10. I’ll answer Bingham’s question: The right to respect for private and family life. An utterly weird thing in context. It’s completely obvious what right to life or speech ought to mean. But can anyone honestly claim that they have a clear notion of what are the limits on private and family life?

    Does it mean we have a right to arrange our families as we see fit and have the state respect and recognise this? If not then the article is utterly empty, but I’ve never seen anyone seriously claim that this article creates an automatic right to gay or polyamorous marriages.

    Does it mean we have a right to break the law without the press investigating so long as we do so privately? This is surely absurd, but it was the general conclusion in the case of Max Mosley (R v. Brown hasn’t been overturned to my knowledge).

    The question of what laws with regard to private actions are legitimate is a controversial one. It’s obvious to liberals, harm test. It’s obvious to conservatives, protecting the interest of society, traditional values etc etc. Deciding between these two incompatible approaches to the topic is a matter for democratic debate. To suppose that we can settle it in a rights document is really to say we will leave a large a genuinely undecided question in the hands of our judiciary. This is (like Roe v Wade) deeply unsatisfactory to all. It means the conservatives feel wronged and and imposed upon by an outside authority and it means the rights are genuinely insecure to the displeasure of the liberals.

  11. Rights are applicable to all, that is why the great popular revolutions of the 17th and 18th centuries created Bills of Rights. A Statute of Rights is as Marx said, the Bible of the people.

    You have a choice, you can have general laws with their weaknesses; specific laws against social or ethnic group, which by their very nature would be discriminatory; or no laws or negative freedom, which would invite the legal profession and the state to interpret at whim.

    You only have to look at the recent attacks on jury trials and secret courts to see where the political pressure is being applied.

    The defenders should be making more of the EHRC and HRA, even down to producing easy read formats of it or having it taught in schools. It should be learnt by everyone, which is most probably why some are against it.

  12. Sean Tyrer, “James Bulger’s psychopathic murderers” were CHILDREN. You are frankly a much bigger and scarier threat to my freedom – to all of our freedoms – than two damaged, neglected kids acting out in the most destructive way they could will ever be.

    1. Gwenhwyfaer, The termites have certainly dined long and well on your sense of priority, it seems. They were two ten year olds, and your assertion that their spectacularly hideous crime is to be explained by their being ‘damaged’ and ‘neglected’ is a head-on, disgusting assault on those children who are truly damaged and neglected and who never ‘act out’ (what a curiously forgiving turn of phrase you use) in such a way. Genuinely damaged and neglected children, entirely innocent of any crime, are the real victims of your disgusting comment. Your attack on me is incidental, though equally despicable, simply because you have previously, thankfully for you, shown that your word and values are never to be trusted.

      1. Right. Forgiveness is disgusting, empathy is sociopathy, and eternal vengeance, even unto the fourth or fifth generation, is the only path to virtue. Light up that pitchfork, Sean, you’ve got witches to burn!

        The sixteenth century called; they want their morality back.

        1. Gwenhyfaer: By what right do you claim to forgive, and present ‘forgiveness’ as an acceptable offering, when you have not personally had your own life ripped apart? Not your call to make. You start badly, and then go very badly south all the time, with your manic ranting about ’empathy is sociopathy’ (you seem to feel more empathy with the criminal than the victims, at least in this case – do you generally do that?) and then speaking of ‘eternal vengeance’ – the alternative to your manic outbreak would be precisely what? ‘Momentary justice’? That will actually do. Your kind of thinking is very scary.

  13. Adam Casey, it’s interesting that you bring up Roe v Wade. SCOTUS didn’t create new law with Roe v Wade; they simply did what they were set up to do, and clarified what the constitution was intended to guarantee where there was a question over its wording and intent. You may disagree with the conclusion, but wouldn’t you agree that attacking the court for doing exactly what courts are there to do is a rather cowardly way of going about trying to unlose an argument?

  14. I agree – pure gesture politics and revolting too. So my question to Ms May is ‘do the French and German governments have a similar dislike of the ECHR?’. If they do then perhaps she should see how she gets along amending European legislation – or living with a useful crimp in the power of governments. If not then she must look closer to home, perhaps poorly drafted legislation and guidance from parliament is the problem. So, let us be a bit more like the French and Germans, if they are tougher then let us be a bit tougher, if they are cool with the ECHR then let us be cool.

  15. I think Adam Casey has this one right: there is a fundamental difference in outlook between “liberalism” and “conservatism”. Rather than “liberal” and “conservative”, though, I’d call them “individual” and “collective” (more neutral than “open” and “closed” or, worse, “open” and “tribal”

    “Human rights” are individual rights, rights we have by virtue of being human. They are a property of individuals rather than collectives such as a society or nation. This does not sit well, in fact at all, with a collective view that sees the collective as the actor, the end ethical good and the possessor of rights. An individual interest trumping that of the collective is, under this view, just plain wrong. The idea that an individual outside of the collective (foreign judges!) should be the source of this must be unbearable.

    I think this is the reason behind people’s opposition to the Human Rights Act and the ECHR. There “reasons” appear to be bullshit rationalisations because they are bullshit rationalisations: not a report of reasons but pretend reasons to make the viewpoint look rational.

  16. I understand that many are involved in ‘human rights’ law and have incomes dependent on that position. Understood also that we need, as the current top bit of the current biological state of the world, to look after each other. What I don’t understand is why all of those ‘rights’ Bingham cites need to be brought under a confusing and muddled generalising umbrella called ‘human rights’. Such massive generalising is surely inviting incoherence, confused practice and ultimately, injustice. What, do you think, is wrong with dealing with each of those ‘rights’ as they arise in cases where they are abused, rather than trying to lump all of the other ‘human rights’ baggage into a rather easy case? This is confusion on a massive scale, it seems to me. The question seems to me not so much ‘which rights are we to discard?’ but ‘which ones are we to include?’ There is an overload here, and it’s leading to confusion and injustice, I think.

  17. There is a sign in the smoking shelter outside the front door of the Marriott in Slough that says (paraphrasing)

    “The HRA forbids anyone from making a nuisance here that would disturb the neighbours”

    It’s not the Act that needs repealing, it’s idiocy like this.

    1. Such idiocy misinformed as well. I seem to remember a UK law that forbids being a nuisance. Extremely depressing that some people are so gullible and unthinking in relation to anything to do with ‘Europe’.
      The xenophobia doesn’t seem to extend to TTIP which would effectively destroy the democratic process………….

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