In light of the election last week, and the immediate plans that seem to be in motion, everyone is discussing the Human Rights Act (HRA) and the fact that it may be repealed, under a Conservative manifesto promise.
So I thought I would give you a breakdown of what the legislation actually is, what it purports to do and why it is important. I will then discuss the impact of possibly repealing the legislation, and the long term effects this could have. The latter issue will of course contain a degree of conjecture but if you have any interest in the EU (and you should, especially as a referendum is promised) then keep reading.
I will try to remain as neutral as is possible, as God forbid anybody should have an opinion about the way that their lives could pan out for the next 5 years. However, you will see that I have a certain slant but hopefully you can still appreciate any facts and arguments that are put forward.
So without further ado... Let's delve in.
What is the HRA?
The HRA is a UK incorporation of the European Convention of Human Rights (ECHR). This is as it says on the tin, European. However, it is a separate entity to the European Union (EU). For the sake of brevity in what is likely to be a long post, I will post links for you to go to further information, if you would find this of interest. I will stick to some core information.
For more on the ECHR
http://www.bbc.co.uk/news/world-europe-16924514
http://www.bbc.co.uk/news/world-europe-16924514
The HRA governs the relationship between the state and the citizen. So, in essence, it prevents oppresive, discriminatory or negligent elements of the state from infringing rights to your freedom, family life, a fair trial etc. The HRA can be googled quite easily and it is not a hard read, even for non lawyers. But a breakdown can be found in the graphic (right).
The "state" is any branch of public service- the government, police, state run schools... You get the picture.
Importantly, this is not legislation that can be enforced from person to person. So, for example, if my mother tells me I cannot marry I cannot bring a claim under the HRA, Article 12.
In addition, it should be noted that every European country is committed to the EHRC aside from Belarus. Russia and Turkey (not EU members) ARE signed up to the EHRC.
Lastly, by having the HRA incorporated into our own law, rather than relying on the convention alone (which is all but word for word), it means that we can enforce our rights in the UK, rather than having to rely on a European Court, known as the European Court of Human Rights (ECtHR). By being able to bring a claim in the UK it should take less time, be cheaper and generally be more accessible.
Why should I care about the HRA?
Hopefully nobody that reads this will ever need to enforce any of the rights protected by the HRA. These are all things that we should be able to take for granted. By having this piece of law it gives us a mechanism to make the state answer for itself, and it can be done with relative ease. Don't get me wrong, litigation is never normally SIMPLE, but this certainly makes it more accessible.
Without the HRA, depending on what the Conservatives plan to do, the UK will still be bound to the ECHR. The HRA is simply a mirror of the convention, providing us "easy access". If the HRA goes, the same rights will still be there to enforce, but you will have to enforce it directly with the ECtHR. This is much more difficult- both logistically (it sits in Strasbourg) and financially. It would also take much more time. According to some statistics, the ECtHR has a back log of around 100,000 cases at any given time.
The risk we run here is that if the HRA is repealed, this will not be permitted by the ECHR and the UK will have to leave the Convention. If this happens, we lose any right to enforce under the current laws.
Why is repealing the HRA so concerning?
Now stay with me here, this is where the opinion comes in. But hear me through, at least for old times' sake.
If the HRA is repealed, it is likely to be replaced with a Bill of Rights. This is not a new idea. In fact, the Conservatives have been bringing up this idea for some years. Further, it was suggested in 2010 (but blocked by the Lib Dems) but they did agree to draw up a draft of a Bill of Rights by the end of last year, which is still nowhere to be seen.
It is very worrying that this issue has been brought to light now, before anybody (lawyers and politicians, lay people, anyone) has had a chance to see what the alternative would be. Many people are very suspicious of a Conservative government, and would perhaps think they would create a Bill of Rights that would preclude some facets of the state, or make it too expensive and difficult to ever bring a claim. This is certainly what they have done in justice generally. Legal aid has been decimated and employment claims have never been more expensive to bring, thanks to the mainly Conservative influence in the coalition.
So in conclusion of this issue, we should be wary not to sensationalize exactly what MAY happen. The fact is, we don't know at this point. I will give the Tories their dues. Their new Bill of Rights could be a much better alternative. But we should be very suspicious about making such claims before any draft has been written and analysed.
And are there any more far-reaching effects?
Devolution
Well I'm glad you asked. The UK as a nation has not been so unstable for many hundreds of years. With the Scottish referendum last year, and the possibility of further power being devolved to Scotland, Wales and Ireland it would in my opinion be foolish to have this particular policy being the spearhead justice policy.
Devolving power to the nations within the UK, could and would affect the constitution of the country. It should be said there is no written constitution at the moment, and it is largely implied and enforced by common law and created by historical influence.
Furthermore, with an EU referendum promised, this could also make a considerable constitutional change if the voters want out.
Furthermore, with an EU referendum promised, this could also make a considerable constitutional change if the voters want out.
What I am implying here is that now is not the time to be drafting a Bill of Rights, the country is too unstable and uncertain in its future to be able to draft one effectively. Anything drafted hastily would likely not have the longevity that would create stability the country so badly needs, at least in terms of devolution. If any kind of devolution is to be investigated, whether this is UK or EU, it would be wise to do this prior to pursuing any change to the current framework of the HRA.
International Aspects
We have already touched upon the EU, so I won't spend too long on this point. But by moving away from the ECHR this, to me, sends all the wrong messages and creates a worrying state of affairs. I realise that the ECHR and the EU are separate beings, but many of the parties signed up to these bodies overlap, and will take note of anything that happens now with the ECHR.
We do not live in a small, parochial world anymore, The world is a big place, with international trade and travel never being more easy. The UK is by no means a poor or undeveloped country, but it certainly does not have the power and the clout that it had pre-WW2. The rise of the superpower, namely China though other countries are also making their presence known, means that we suddenly look an awfully small island with no meaningful connections.
To me, I value our European connections very much so. They create a "block" of many important states, that together create more influence than any one country could alone. This would allow us to compete with countries like China by helping us to match their resources and size. By departing from the ECHR, potentially, we send the message that we are already withdrawing from Europe: the continent, the EU and of course the ECHR. By doing this, it could weaken any bargaining position that the UK may have had in the EU to lobby for much more important change, such as freedom of movement. In my mind, this is much more pressing than any change to the human rights framework that is already in place.
By beginning to withdraw from "Europe", we appear to be giving a suggestion of a foregone conclusion that we have no interest in staying in any European organisation.
Conclusion
Wow, that was some essay. If only I wrote my university essays that quickly.
I think what I pull from this is that this pursuit of the HRA and its repeal is far too hasty. There are much more pressing problems in justice and law that should be dealt with first; such as the freedom of movement within the EU. Further, nobody seems to yet have enough information about this prospective Bill of Rights in order to warrant any action on it now. And as has been mentioned prior, this cannot be effectively drafted until the UK has gained some sort of certainty in its constitutional future.
I hope this has been of benefit to at least some of you, if indeed anybody actually reached the end! If you did, a gold star for you. Or wine... which ever you would prefer!
I leave you with one more article I found when researching this which I liked and found useful: it is also written by a fully fledged lawyer rather than a wannabe.
Any questions or anything I have included in error, please let me know in the comments and I will do my best to answer them/ rectify them.
Until next time...
No comments:
Post a Comment