Nothing written down? The Human Rights Act

This is the first post looking at our constitution and a brief look at the Human Rights Act.

At the end of my last post I said the UK has no written constitution; that’s not strictly true.  Bits of it aren’t written down.  Other bits are.  And the whole point is that it can change all the time.  This has advantages and disadvantages.  On the plus side, it has meant that the UK has been fairly stable, politically, for hundreds of years.  We’ve been doing parliamentary democracy longer than anybody else.  This is because our constitution is so flexible it can adapt to whatever the circumstances ask of it, like the massive reform of the House of Lords at the beginning of the twentieth century and the gradual erosion of the powers of the Monarch.  We haven’t had to chop any heads off for ages.

On the down side, however, it means that our current law is very much subject to political pressure.  One of the main benefits of having a relatively fixed constitution is that you can do some longer-term thinking; you can set things aside that won’t change in a hurry.  The most obvious things found in written constitutions in other countries include inalienable rights (i.e. rights that cannot be taken away).  For Americans the ‘First Amendment to the United States Constitution’ provides them with their right to free speech.  It cannot easily be restricted, regardless of what pressure is on the government of the day.  Good stuff.  Whether giving everybody the right to bear arms – through the second amendment – was such a great idea is perhaps less universally accepted.

We have not had anything similar in the UK until relatively recently, when we signed up to the European Convention on Human Rights at the end of the Second World War.  This sets out a number of inalienable rights.  These include the right to freedom of expression (Article 10) and the right to life (Article 2).  If necessary these rights can be enforced by taking a case to the European Court of Human Rights in Strasbourg.

However, through the Human Rights Act 1998, UK courts are also obliged to take the Convention and Strasbourg case law into account when making judgements.  The courts can also issue a ‘declaration of incompatibility’ if no amount of interpretation is going to get an Act of Parliament to sit with the Convention.  Grand though it may sound, this has no legal effect on the Act or on the parties in the case, until Parliament amends the Act in question.  In such a case it is still open to the parties to enforce their right by taking the case to Strasbourg.

It is not, then, from the Human Rights Act that human rights derive.  Instead it is from the Convention – the treaty we have been party to for over fifty years.  What the Act does is make things less expensive for litigants (that is, people going to court) by bringing the law ‘in-house’ – back to a UK level.  This helps prevent us having to ‘wash our dirty linen’ at the European Court.  The Human Rights Act is often blamed when perceived injustices take place, but it is important to recognise that it does not grant any new rights.  It only makes it easier to enforce ones that have been enjoyed for decades.

Nevertheless, the Human Rights Act represents one of a number of big shifts in the law.  If the UK does have a written constitution then the Act forms a key part of it.  If there is a debate on the validity of human rights – whether we should grant these particular rights to all people – then it is one that must examine the Convention itself, not the Human Rights Act.

Personally speaking, I would not want to be deprived of any of the rights in the convention and so live much happier knowing they are secured in law for all.  Perceived injustices relating to human rights usually involve those convicted of horrible crimes, who have effectively deprived others of their human rights.  I am not comfortable with the idea of treating them as less than human, as in some ways that is to become them.  I am even less comfortable with the idea of the state deciding that some humans are not to be given the same rights.  The authors of the ECHR drafted the document primarily to prevent the state committing attrocities against the individual.  I would not be quick to do away with that protection, even if it sometimes leaves us uncomfortable in our protection of those who we feel society should owe nothing.

You may disagree – comments are of course welcome.

In the next post we’ll look at sources of law in the UK.