Letting public authorities loose: The dangers of repealing the Human Rights Act – Alice Donald

humanrightsact_smallIt’s time to tell the untold story of the Human Rights Act. 

With the post-election dust barely settled, the Human Rights Act is firmly in the Conservatives’ sights. Caught in the crosshairs is section 2 HRA, which requires UK courts to take into account, but not necessarily follow, the case law of the European Court of Human Rights.

Also under fire is Article 46 of the European Convention, which makes Strasbourg judgments against the UK binding upon it in international law. This much is clear from the ‘Grayling paper’ of October 2014, the Conservative manifesto, remarks made by Lord Faulks in the pre-election Justice debate (analysed here by Mark Elliott), and post-election comments by David Cameron.

Absent from this debate is the fate of other provisions of the HRA, among them section 6, which requires public authorities to act compatibly with Convention rights unless primary legislation requires otherwise, together with remedies for breach provided for in sections 7 and 8. Continue reading

Event: Debating the Constitution after the Election

ukcla-manchester-logosI’m delighted to say that I will be giving the keynote address at the UK Constitutional Law Association‘s one-day conference at the University of Manchester on the subject of “Debating the Constitution after the Election”. Topical, eh?

The conference is on Wednesday 24 June. My keynote is entitled: The slow death of the UK Human rights system: Is it just a matter of time or can the UK learn to love human rights? I wrote that before the Election, so perhaps remove “slow”.

Full details and line up here and below. There are two ways to attend the conference:

(1) Be a member of the UKCLA (here’s how) and attend for free by simply e-mailing UKCLACON15@manchester.ac.uk ; OR

(2) Pay the £10 registration fee and register via this EventBrite link.

Continue reading

The round-up: more righteous indignation about the Human Rights Act – in both camps.

hot_airIn the news

We can be sure of one thing. A battle is coming.” The future of the Human Rights Act still dominates the news, and this quote comes from UKHRB’s Adam Wagner, who suggests five tactics to ensure that human rights are not eroded. Perhaps the most in-depth analysis to date comes from Jack of Kent, who isolates the “seven hurdles” facing the government, including  Scotland, Tory backbench rebels, the House of Lords and the wording of the “British Bill of Rights” itself. He summarises:

So the current situation is: if the UK government can address the immense problems presented by Scottish devolution and the Good Friday Agreement, win-over or defeat Conservative supporters of the Act, shove the legislation through the house of lords, work out which rights are to be protected, somehow come up with a draft Bill of British Rights, and also explain why any of this is really necessary, and can do all this (or to do something dramatic) in “one hundred days” then…the Conservatives can meet their manifesto commitment in accordance with their ambitious timetable. But it seems unlikely.

Jack of Kent´s conclusion is echoed by Matthew Scott in the Telegraph (“Gove…faces almost insurmountable odds”), Mark Elliott in Public Law for Everyone (“the HRA…is far more deeply politically entrenched that the UK Government has so far appreciated”) and the Economist (“getting rid of the HRA will be tough – and almost pointless”). Continue reading

“We cannot go back”: debating the Human Rights Act – Eva Pils

 

KINGS-COLLEGE-LGOn 24 March, The Dickson Poon School of Law, King’s College London hosted a public debate on ‘The Human Rights Act: the Bill of Rights for the 21st Century?’ at Inner Temple. The panellists were Dr Colm O’Cinneide, Mr Martin Howe QC, Lord Phillips of Worth Matravers, and Mr John Wadham. Professor Aileen McColgan chaired.

Lord Phillips began by reminding us that King John never intended to respect Magna Carta, and that its most iconic sections were not the most prominent in the original document. He went on to point out that the UK’s ‘motive in participating’ in the European Convention of Human Rights ‘was the belief that other members of the Council of Europe should be under the obligations that it imposed.’ A ‘groundswell of dissatisfaction’ with the working of the Convention had led to critics portraying the Human Rights Act today – rather like Magna Carta in its infancy — as a disturbance to an historical order. The British Bill of Rights now proposed by the Conservative Party was

intended, as I understand it, to give the Supreme Court, rather than the Strasbourg Court, the last word in the correct interpretation of the Human Rights Convention. I have yet to see a draft of this; but in principle I am not in favour…Under the scheme of the Convention it is ultimately for the Strasbourg court to give authoritative rulings on its effect. I emphasise the word “ultimately”. Before according the Strasbourg Court that last word, there is room for dialogue.

Continue reading

Everybody is talking about human rights

Screen Shot 2015-05-14 at 09.52.52As I am sure will not have escaped you, these are interesting times for human rights. We still await the detailed Conservative proposals for replacing the Human Rights Act with a Bill of Rights, so it is difficult with any certainty what will happen.

I wanted to gather together a few pieces of commentary and media appearances I have done in the past week, so here they are. We will, of course, be following closely what comes next.

There has been a huge amount more already. Some illuminating pieces (certainly not comprehensive):

Mother paraded as “intimidated martyr” to cheat gay couple of surrogacy arrangement – Family Court

surrogate_motherH & S (Surrogacy Arrangement) EWFC 36, 30 April 2015

M, a fifteen month old girl, was born as the result of artificial or assisted conception and of a highly contested agreement between S (the mother, a Romanian national) and H (the father, of Hungarian extraction) and B (the second applicant and H’s partner who had moved to the UK in 2004). None of these parties are portrayed in the photograph illustrating this post.  Read judgment here

H is in a long-term and committed relationship with B and was at the time of conception. H and B contended that they had an agreement with S that she would act as a surrogate and that H and B would co-parent the child but that S would continue to play a role in the child’s life.  It was a central part of their evidence that S offered to help them become parents and, following discussions between them, first with H and then involving B, the parties agreed to proceed on the basis that H and B would be the parents to the child and that S would have a subsidiary but active role. On 20 or 22 April 2013 M was conceived by artificial insemination using sperm from H at the applicants’ home. It is agreed by all parties that B was at home when the insemination took place.  Continue reading

The Round-up: A British Bill of Rights on the Horizon?

Photo Credit: The Telegraph

In the news

‘The Conservative Party has won a majority and can implement its manifesto. The Human Rights Act will be scrapped,’ writes Colin Yeo for the Free Movement blog. Such an outcome might not be a foregone conclusion, but Professor Mark Elliott is clear that ‘repeal of the HRA, the adoption of a British Bill of Rights and perhaps even withdrawal from the ECHR are now less unthinkable’.

Questions surrounding the content of the proposed Bill of Rights have therefore assumed increased urgency. A press release issued in October 2014 spoke of limiting the rights of illegal immigrants, travellers, victims of British military abuse and foreigners who commit crimes in the UK. Yet as UKHRB founder Adam Wagner notes, ‘only foreign criminals were mentioned in the manifesto, so it is all to play for.’

The HRA has failed to secure resilience in domestic politics. Benedict Douglas for the UK Constitutional Law blog attributes this failure to an absence in the Act of a ‘justification for rights possession in dignity or any other foundational human characteristic’. Mark Elliott points to the manner of its introduction: little effort was made ‘to engage the general public in what was perceived to be a political and legal elite’s pet project’.

Current discussions could thus present an opportunity, argues Adam Wagner for RightsInfo. A ‘Bill of Rights, done properly with real public involvement might help convince people that human rights are for all of us.’

For those looking to read more about human rights reform:

The Human Rights Act and a Question of Legitimacy – Barrister Austen Morgan considers the advantages of a British Bill of Rights for The Justice Gap.

What does a Conservative Government Mean for the Future of Human Rights in the UK? – Professor Mark Elliot puts together a useful list of recent posts he has written on Conservative plans for reform.

Other news:

  • Michael Gove has been appointed Justice Secretary and Lord Chancellor in the post-election Cabinet. The Telegraph reports here.
  • BBC: Two Syrian asylum seekers imprisoned for failing to provide passports have been successful in appealing their convictions.
  • The High Court has ruled that a child should be brought up by her genetic father and his male partner, despite objections from the surrogate mother. The Guardian reports.
  • The Justice Gap: The Uk Supreme Court has launched an on-demand video catch-up.
  • Legal Voice: More than 8,000 lawyers are set to join the London Legal Walk to raise funds for the legal not-for-profit sector
  • Mark Freedland and Jeremias Prassl express concerns over the impact and regulation of ‘zero-hours contracts’ for the Oxford Human Rights Hub.

In the courts

The case concerned the imposition of administrative fines on individuals who had been acquitted by the criminal courts of the same offence. The ECtHR found a violation of the right to a presumption of innocence (contra. Article 6 ECHR) and also the right not to be tried or punished twice (Article 4 of Protocol No.7).

Events

‘In Conversation with Sir Stephen Sedley’ – As part of LSE’s Legal Biography Project, Sir Ross Cranston will interview Sir Stephen Sedley on his life and career in the law. The event will be held on 19 May in the Wolfson Theatre, New Academic Building. More information can be found here.

UK HRB posts

If you would like your event to be mentioned on the Blog, please email Jim Duffy at jim.duffy@1cor.com