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In Defence of the Human Rights Act

Anna Falconer discusses the ongoing debate concerning the effectiveness of the Human Rights Act and looks at whether or not it remains the most appropriate human rights protection legislation for this day and age.

It is clear that the the debate on whether or not the Human Rights Act (HRA) remains the most appropriate human rights protection legislation for this day and age has reached the point of hysteria. Those proposing to scrap the Human Rights Act condemn it for relinquishing Britain’s sovereignty to Strasbourg and prioritising the rights of terrorists over British people. Those on the other side of the argument accuse the Conservative party of proposing to strip British citizens of their most fundamental civil rights, while some have even likened a post-HRA Britain to 1930s Nazi Germany. [1] While this mud-slinging match has dominated the British media lately, what is rarely seen to be had is a hard facts discussion as to the legal realities of the emotive statements  coming from our elected officials and human rights commentators. On the back of the catastrophe that was the Conservative Party’s twitter statement confusing the Council of Europe with the European Union, it is worth looking just a few of the legal myths swirling around this debate of undeniably great importance.


Discussions as to the superfluousness of the Human Rights Act is certainly a common rhetoric put forward in the debate by both legal and political minds that oppose the act. With the 800th anniversary of England’s Magna Carta being celebrated this past June there has never been a better time to applaud Britain’s long standing human rights protections and freedoms. Indeed it is undeniable that Britain is lucky enough to have an expansive shelf of common law civil liberty protection. As Lord Hoffman remarks, “I would not like anyone to think that we are concerned with some special doctrine of European Law. The United Kingdom subscribed to the Convention because it sets out the rights which British subjects enjoyed under the common law.[2]” Indeed, Entick v Carrington[3] was doing a fine job of protecting us against illegal searches of our property and correspondence long before Article 8[4] was drafted. It is clear that the United Kingdoms’s human rights advances influenced the development of the ECHR, however what is often not discussed in a positive light is the way in which the ECHR has helped to develop our domestic law, even prior to the implementation do the HRA.[5] For example, the influence of the ECHR resulted in conducive changes to Scotland’s criminal appeal system[6]. Following these changes it was recommended in T Petitioner by Lord Hope that legislation should be presumed have the aim of being in conformity with the convention.[7] Following this a great wealth of human rights claims were made with reference to the ECHR through the domestic courts[8] before the Human Rights Act was implemented to catalyse developments and allow an easier mechanism through which to rely on the ECHR. There is a great amount of evidence  in the Scottish court system that affirms that the introduction via the human rights legislation has had significant effects on the Scottish courts system and on human rights policy development without mounting to a major upheaval of the previous functioning of the courts.[9] In light of this evidence it is clear that Britain should continue to enjoy the mass of human rights and rights interpretation afforded through use of the HRA and the convention in combination with our already substantive common law human rights protection.


The act has also been lauded by many over the years as an affront to parliamentary sovereignty and a great contributor to it’s diminishment. Such statements however manifestly confuse the meaning it’s legal provisions. Under s4 of the HRA courts may issue a declaration of incompatibility where they are unsatisfied that a provision of primary legislation is not compatible with a convention right. However, such a declaration has no effect on the validity and continuing operation of the provision in respect of which it is given. Whilst almost all of the relatively few declarations of incompatibility issued by the courts[10] have been considered by the government and resulted in legislation or policy change, the legislators right to ignore such a declaration certainly has a basis in real practice. For example the ignorance of the session courts ruling on the legality of the ban on prisoner voting rights in Smith v Scott[11].  Indeed in Burden v UK[12] the European Court of Human Rights commented that a declaration[13] of incompatibility did not constitute an effective remedy under convention due to the non-binding nature of the provision. Therefore we see a further affirmation of the lack of affront the HRA posses to parliamentary sovereignty. Rather, the HRA sees the implementation of the new model of liberal democracy that improves and diversifies the quality of the dialogue over human rights whilst leaving the final word on the matter to the electorally accountable parliament[14]. Where there is a real issue declarations of incompatibility allow the courts a clear method in which to bring systematic human rights issues into the legislative and public forum, greatly enhancing the improvement of human rights protection.


In his call for a move away from the human rights act, Jonathon Fisher QC stated that the ECHR (and therefore the corresponding implementation method of the HRA) is a “fundamentally flawed and lop-sided document,… hopelessly unbalanced by its omission to incorporate any civil obligation into the text.” Indeed, there have been may proposals that the act should be ditched for a bill which introduces a concept of equity in which people could only access justice for their infringed rights if they have discharged their civil responsibilities in acting fairy and reasonably[15]. There are many reasons as to why such an explicit inclusion of responsibilities in a human rights act is completely unnecessary. Focusing away from the larger jurisprudential debate on the inextricably bound nature of rights and their corresponding responsibilities, it is clear from the convention itself that most provisions that the HRA provides a procedural mechanism for are not unqualified. Ever provision that provides the opportunity for proportional limitation by the state in the greater public interest clearly hands down responsibilities. For example, a wealth of case law shows that if you enjoy the article 10 right to freedom of expression you have the responsibility not to incite violence. Furthermore, article 17 of the ECHR explicitly states that no individual can rely on it’s provisions to engage in an activity or freedom that harms another rights under the convention. On the other hand, certain rights, such as the article 6 right to a free trial hold their rightful position as universal  and inalienable. Nevertheless, both the labour and the conservative party’s calls for rights to be contingent upon the discharge of greater civil responsibilities as opposed to the basic responsibilities associated with the discharge of a right as outline above. The Joint Committee on Human Rights (JCHR) have given the most appropriate response to this absurd call by stating “human rights are rights that people enjoy by virtue of being a human: they cannot be made contingent on the prior fulfilment of responsibilities.”[16]


Condemnation of the Human Rights Act as a “criminals charter” has vastly contributed to it’s negative public image. A hostile media has seen the proliferation of tales of fried chicken being delivered to burglars because of their human rights protections and convicted rapists being allowed to reply on the protection of the Human Rights Act to prevent their details from being places on the sex offenders’ register.[17] As outlandish and unworthy comment these myths are, perhaps the greatest criticism the human rights act suffers is it’s supposed protection of terrorists and other criminals from deportation. To name but one of these criticisms, David Carmon stated in 2006 that the ruling in Chahal which prevented a Sikh separatist from being deported to India where he would face torture was tantamount to allowing the rights of criminals to true the rights to peace and security of the British people.[18]  As senior labour politicians have previously advocated, the solution to these fears could lie in prioritising the public’s article 2 right to life, following the recommendations of Lord Falconer.[19] Liberty however reminds us that one of the most compelling reasons for placing proportionate legal restrictions on the rights protected by the ECHR is the protection of public safety. [20] Indeed, the JCHR  have rightly stated that a rebalancing of the Human Rights Act would risk “weakening the existing machinery” of the protection of rights that the Human Rights Act gives us.[21]  Therefore it seems the government would do well to take note of the JCHRs advice that it should “seek proactively to counter public misperceptions about human rights rather than encourage them by treating them as if they were true”[22]. For example, many criticism of the HRA concern successful appeals against deportation to a country on the basis that a person may be subject to torture or inhuman and degrading treatment there, whilst failing to recognise that this has long been prohibited by the ECHR itself as well as the International Convention on Civil and Political Rights.[23] Indeed, in many ways it seems not to bold a statement to say that there has been active encouragement of the idea that citizens are considered to be ‘rights-bearing’ and that foreign nationals are in many ways not[24], or at least that this idea has not been met with the appropriate response by the government.


What are the alternatives available in the event of a successful repeal of the Human Rights Act?The Conservatives have proposed a “British Bill of Rights and Responsibilities”[25] that would contain the freedoms originally outlined in the Convention whilst ensuring the supremacy of the Supreme Court in the matter of case interpretation[26]. This supposed expansion in the margin of appreciation that the courts would benefit from in the absence of the Human Rights Act appears to be the big draw to the alternate system. Indeed, the Supreme Court would no longer be required to take into account the jurisprudence of the European Court of Human Rights when handing down their judgements[27] and would be free to decide convention cases as they thought was most in line with todays British laws and values. What proponents of a British Bill of Rights fail to mention at this point is the likely increase in cases that would be brought to Strasbourg in the event of a judgement out of line with the convention in order to gain a (somewhat) binding judgement.[28][29] The law would remain the same in principle whilst making it harder and more cumbersome for individuals to be able to enforce their rights in an already overburdened Strasbourg court.[30]


For the time being at least, the Human Rights Act is merely suffering from a lack of judicial and political dialogue as to the true extent of it’s provisions and a lack of public faith as a result of efforts to educate us on it’s successes. To throw away an Act that aids in the practical deliverance of human rights protection and instead bring in a piece of empty legislation that merely complicates the enforcement of rights would be to make a farce of the commitment to individual civil rights Britain has been so proud of for so long. As the director of Liberty Shami Chakrabarti said recently, “We already have a successful British Bill of Rights- It’s our Human Rights Act”.[31]


[2] Lord Hoffman at para 88 of A v Secretary of State for the Home Department (2005) 1 AC 98

[3] (1765) 2 Wils KB 275; 95 ER 807

[4] European Convention on Human Rights (1953)

[5] Murdoch, M. Reed, R. “Human Rights Law in Scotland” Third Edition (West Sussex) pp2-14

[6] Boner v United Kingdom (1994) A 300-B and Maxwell v United Kingdom a: (1994) A 300-C

[7] T, Petitioner (1997) SLT 724 at 734

[8] For example, Mcleod v HM Advocate (No2) (1998) JC 67, Megrahi v Times Newspapers Ltd (1999) JC 22 and Gayne v Vannet (2000) JC 51 to name but a few

[9] Mullen, T. et al “Human Rights in the Scottish Courts”  Journal of Law and Society VOLUME 32 NUMBER 1 (2005) p168

accessed 10/1/16 at

[10] Since the coming into force of the HRA 15 years ago merely 20 final declarations have been issued- Human Rights Joint Committee “Declarations of Incompatibility by UK courts”

Accessed 10/1/16 at

[11] SCLR 268

[12] [GC], no 13378/05, § 40, ECHR 2008;

[13]Fisher, J. “A British Bill of Rights and Obligations” Conservative Liberty Forum (2006) p4

Accessed 10/1/16 at

[14] Goldsworth, J. ‘Questioning the Migration of Constitutional Ideas’, in Choudry, S. The Migration of Constitutional Ideas (2006) p123

[15] Chope, C. “Commons Select Committee on Political and Constitutional Reform: UK Bill of Rights Commission- oral and written evidence- 9 and 16 June 2011) (2011) Answer to Question 49

Accessed 10/1/16 at

[16] Joint Committee on Human Rights “A Bill of Rights for the UK?” (2008) Twenty-ninth Report of Session 2007-08, p71 (Hereafter JCHR, “A Bill of Rights for the UK?”(2008))

Accessed 7/1/15 at

[18] Cameron, D.”Balancing Freedoms and Security- A modern British Bill of Rights” speech at the centre for Policy Studies (2006)

Accessed 2/1/16 at

[19] McGhee, D. “Security, citizenship and responsibilities beyond the Human Rights Act: towards a British Bill of Rights and Responsibilities in the UK” in Kang-Riou, N. et al “Confronting the Human Rights Act: Contemporary Themes and Perspectives” (2012), Oxford p276 (Hereafter Kang-Riou “Confronting the Human Rights Act”)

[20]Russel, J. Liberty’s response to the Joint Committee on Human Rights, “A British Bill of Rights” (2007)

accessed on 10/01/15 at

[21] JCHR, “A Bill of Rights for the UK?”(2008) p20

[22] Ibid p14

[23] 1996

[24] Kang-Riou “Confronting the Human Rights Act” p279

[25] “Protecting Human Rights in the UK: The Conservative’s Proposals for Changing Britain’s Human Rights Law”, accessed 03/11/15

[26] Ibid p6

[27] HRA (1998) Article 2(1)

[28] ECHR Article 46

[29] Note Parliament’s deft avoidance of the enforcement of the judgements handed down from the European Court of Human Rights in various cases regarding the right of prisoners to vote e.g. Hirst   v United Kingdom (No2) (2005) ECHR 681. A discussion of the House of Commons on the matter is contained in a briefing paper accessible at, accessed 3/11/15

[30] For a greater discussion on the backlog of cases at Strasbourg see- Registry of the European Court of Human Rights “Annual Report 2014” European Court of Human Rights (2015) Strasbourg

Accessed 10/1/16 at

[31] Comments made at a lecture held at the University of Glasgow on 1/10/15

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