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  There is no real chance that the Act will be repealed or the UK withdraw from Strasbourg.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?

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