Saving the Human Rights Act: Our Response to the Commission on a Bill of Rights

Friday 28 September 2012

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Garden Court Chambers has today submitted a formal response to the Second Consultation by the Commission on a Bill of Rights. In it we stress the importance of retaining the existing rights and provisions of the Human Rights Act 1998, and question the merits of a separate Bill of Rights.

In our response, we emphasise how in our experience of acting in human rights ligation both pre- and post-the Human Rights Act (HRA) 1998, the HRA has assisted ordinary individuals in their daily lives. Examples include enabling people to obtain a sufficient level of social services to protect basic health and dignity, ensuring appropriate scrutiny where a person is deprived of their liberty in a care home, ensuring that people are not needlessly evicted from their homes without justification, and ensuring that an inquest is conducted where a question arises over whether adequate care was provided in a psychiatric hospital.

A "British" Bill?

We highlight the false premise that the existing HRA, which incorporated the European Convention of Human Rights and Fundamental Freedoms (ECHR or the Convention) into UK law by an act of parliament is not already a UK or "British" Bill of Rights. As there is no proposal to withdraw from the Convention, the introduction of a separate Bill of Rights would create confusion in respect of the existing jurisprudence.

Enhancing or diminishing the ECHR

In answer to the question on the extent to which the Convention should remain incorporated into domestic law, we highlight how the HRA already protects parliamentary sovereignty over the authority of the Convention in domestic law. Any change would therefore either cause the Convention to supersede domestic law (something there is no political appetite for), or seek to diminish compliance with the Convention, and to ignore rulings of the Strasbourg court. This would be highly undesirable, not least because it would be difficult for the UK government to promote fundamental rights in other countries while eroding them domestically.

Additional rights

On the possibility of introducing additional rights, we maintain that there is no need to do so. We have responded on three: a right to equality, rights for victims and children's rights, explaining why these would be protected under the existing framework if only the UK ratified all the international treaties that protected them.

Rights and responsibilities

Political discussions have mooted the idea of incorporating responsibilities in any Bill of Rights. While social responsibility is important both for individuals and organisations, we submit that this is separate from the existence of fundamental rights. Going further, we believe that rights should be accessible and enforceable by every member of society, without any conditions or contingent responsibilities. We illustrate this in our response with practical examples, and some worrying conjectures that any change in the status quo might bring about.

We actively encourage legal practitioners, academics, campaigning organisations and other interested parties to send their own responses to the Ministry of Justice, and to use our response as a basis for their own submissions.

The Commission on a Bill of Rights was set up by the government in 2011 to consider the introduction of a UK Bill of Rights. The Second Consultation was launched in July 2012.

For media enquiries, please contact Ben Walker, Marketing Officer at Garden Court Chambers on 020 7993 7671 or benw@gclaw.co.uk.

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