The British Academy have today published a very interesting new report by Colm O’Cinneide considering the workings of the UK human rights law, the relationship between the ECHR, UK courts and the Parliament and the potential effect of a bill of rights.
The report (full report / executive summary) had a prestigious steering committee, including Professor Vernon Bognodor, who knows a bit about the British constitution, and Professor Conor Gearty. The conclusions represent – at least in my experience – the mainstream view amongst legal academics, lawyers and indeed judges on the human rights system. In summary, and with apologies if this is an over-simplification of the report’s detailed findings:
- Healthy democracies are based on more than majority rule;
- A human rights system, policed by the independent courts, can protect minorities which would otherwise be excluded in a majoritarian system;
- It can also protect from a too powerful Executive, which in the UK at least is very powerful indeed (the report refers to this as a ‘culture of justification’, i.e. that public bodies expect to have to justify their actions)
- This is not unique to the UK; it is a feature of elected democracies across the world;
- Despite what the critics say, on a close legal analysis, the European Court of Human Rights is no more activist or interventionist than other international courts (see here for more);
- UK Governments can choose not to implement European Court of Human Rights judgments, but it would be unwise to do so, not least because of the potential damage to its international reputation (and that it has agreed to do so by signing up to the European Convention in the first place).
- The machinery of the Human Rights Act has worked well over the past 12 years; for example, Parliament responded positively to 18 out of the 19 definitive ‘declarations of incompatibility’ issued by the UK courts.
- Any attempt to ‘de-incorporate’ the European Convention on Human Rights would give rise to serious legal complications, and may be incompatible with the UK’s international commitments;
- On balance, the current system of human rights laws is compatible with constitutional principles;
- As to a bill of rights, attempting to recalibrate that balance may prove to be a difficult and thankless task. It may also be unnecessary.
So, human rights law generally works as a check on executive authority as well as a protector of minorities. It is always useful to keep those two points in mind when considering the groups who generally oppose the current system: right-wing newspapers which are not generally supporters of minorities, and politicians who would quite like the power back, thank you very much. This is no coincidence.
The shame is that unlike in other systems, such as the United States where the Constitution is controversial but well-liked, the UK public has bought into the narrative that the Human Rights Act is a charter for terrorists and convicted prisoners. As the report points out, the 1998 Act has in the most part worked very well and was cleverly designed to fit into our complex but unwritten constitutional system – in particular, retaining Parliamentary sovereignty (courts cannot strike down primary legislation – unlike, in effect, in the USA).
For the significant number who think the human rights system works well and that the caricature which has been painted of it is built on sand, more needs to be done to put this simple case: the human rights system limits the power of politicians in favour of individuals and otherwise under-represented groups (for example the disabled), and, thanks to careful design, it works pretty well. For politicians and the anti-minority press to support it would be like turkeys voting for Christmas.
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