Are British rights worth more than human rights?

One of the aims of the Conservative government has been the repeal of the Human Rights Act of 1998 and to replace it with a British Bill of Rights. This move has caused much consternation.

I think it is worth considering the impact of the repeal of the human rights act and what it means for our democracy & our freedoms. The HRA '98 offers the people a higher authority, the European Court of Human Rights, to whom we can appeal unjust decisions that can't be resolved in our own state.

An issue readily at hand is that of prisoner voting rights. A particular aspect raised by the European Courts has been the 'arbitrariness' of the blanket ban in the UK on prisoner voting. As Lord Mackay of Clashfern put it:

'Now, there is a point mentioned... it says that a person convicted of an offence, could be sentenced either to prison or to community service... it depends on circumstances other than the actual crime for which a penalty is imposed. And of course if the person is sentenced to community service this blanket ban wouldn't apply. So there was an arbitrariness about convicted prisoners being disenfranchised in that area... The ultimate decision of the court in Hirst was that the blanket ban was unlawful.'
-Lord Mackay's evidence to Commons Select Committee, 2011

The concern of the ECHR has not been disenfranchisement per se, but rather how unfair disenfranchisement can be; an unfairness that risks trivialising the very serious matter of our right to vote. It is a matter that is unlikely to be improved under a bill of rights that seeks to replace the HRA '98.

I use the word 'replace' specifically here since, as the 'Joint Committee on Human Rights' (2008) explained, there are good reasons to want a Bill of Rights & Freedoms in the UK as part of a democratic constitution without needing to abolish the HRA '98.

What I find troubling is the politicisation of rights as part of a sovereignty struggle some see taking place between Brussels and Westminster. That accession to the European Convention on Human Rights is voluntary on the part of member states is a fact that has escaped those who have railed against the latest rulings, seeing them instead as part of their sovereignty narrative.

As with past rulings however, there has failed to be unanimous support for a particular alternate means of assuring the rights of UK citizens. When Mr Cameron, for example, sought for the first time to bring a British Bill of Rights to the table it was branded a 'xenophobic' policy (Chapman, 2006). It is an avenue that has continued to be explored however.

Replacing the HRA '98 with a British Bill of Rights withdraws the United Kingdom from the balancing act of managing two separate sets of judicial structures and in doing so risks inflicting upon the British people a limiting of the Freedom of Speech. The Guardian newspaper sought confirmation several years ago when it came to light that an anachronistic treason law still held a legal foothold today. The particular treason, punishable with life imprisonment, was for the printed advocacy of republicanism (Dyer, 2001). The particular act in question is the 'Treason Felony Act 1848', specifically section 3.

In the course of their investigation, the clearest answer the Guardian received was from Law Lord Steyn (2003):

'The part of section 3 of the 1848 Act which appears to criminalise the advocacy of republicanism is a relic of a bygone age and does not fit into the fabric of our modern legal system. The idea that section 3 could survive scrutiny under the Human Rights Act is unreal'

Baron Steyn makes it very clear that what is protecting the freedom of speech in the UK is the Human Rights Act. But more than that, it protects the freedom of speech elsewhere too, so long as states continue to stand bound to the law. Guardian editor Alan Rusbridger (2001) stressed what a poor example the UK set to the rest of the world by allowing such anti-democratic legislation to remain on the statute book. It would be an error to compound such a poor example by casting off the HRA '98 as well.

As Aiden O'Neill QC (44:21; 2011) put it during the committee hearing:

'What is important... is the example one gives. One of the big issues facing the European Court of Human Rights is teaching newly democratic States about democracy. One of its biggest client cases is Russia. Another one in terms of democracy is Turkey. It is a problem with the Council of Europe mechanisms that some States simply do not fix their systems as they should do and it would be a great pity if a long-established State — the United Kingdom, which was there at the founding and there at the drafting — were to set an example to other States in the Council of Europe that they do not have to abide by the law. This is where politics and international relations come in. It is incredibly important that the rule of law be respected at an international level because if we have law/law then we do not have war/war.'

Others have seconded the opinion that a move away from the European Courts would also be a move away from Europe (BBC, 2011), leaving Britain in a very tricky position.

Back in February we heard from the PM that a review of British Bill of Rights plans would be imminent (Wintour, February 2011), however just a month later came news that the Liberal Democrats had blocked moves to withdraw the HRA '98 (Wintour, March 2011). It is a strong statement of solidarity with human rights campaigners across Europe, one that is certainly much needed and appreciated when you keep in mind the UN vote late last year that managed to strike references to 'sexual orientation' off of a resolution against unlawful & extrajudicial executions (ISHR, 2010).

The European Court of Human Rights is a check against the power of national governments to legislate in a way that infringes upon the liberties of it's citizens. Yet it isn't perfect. Confusion & complication can reign, therefore we must be clear in stance and be careful as to the impression given of this nation's feelings as to the rights of human beings.

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References:
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- For more on the debate:
  Geoffrey Robertson's 'Cameron was right: We need a Bill of Rights'; April 2011;
  Adam Wagner's 'Stoking Eurosceptic anger may damage human rights'; April 2011;

+ European Convention for the Protection of Human Rights and Fundamental Freedoms; 1950;

+  Human Rights Act 1998;

+ European Court of Human Rights;

+ Wikipedia's Notable Cases involving European Court of Human Rights;

+ House of Commons Political and Constitutional Reform Committee
   Written - 'Voting by convicted prisoners: summary of evidence' February 2011;
   Video - Tuesday 1 February 2011 at 10.10am ended at 12.07pm;

+ Parliamentary Joint Committee on Human Rights' 'A Bill of Rights for the UK?'; August 2008;

+ James Chapman's 'Ken Clarke brands Cameron's bill of rights 'xenophobic'; June 2006;

+ Clare Dyer's 'Guardian takes royal treason law to court'; February 2001;

+ Lord Steyn in the Guardian's 'Lords halt challenge to treason law'; June 2003;

+ Alan Rusbridger in the Guardian's 'Guardian loses legal challenge to monarchy'; June 2001;

+ BBC's 'UK "should cut links to European Court of Human Rights"'; February 2011;

+ Patrick Wintour's 'British bill of rights review imminent, says David Cameron'; February 2011;

+ Patrick Wintour's 'Lib Dems thwart Tory hopes of human rights convention withdrawal'; March 2011;

+ ISHR's 'GA Third Committee deletes "sexual orientation" from resolution on extrajudicial executions'; November 2010;