Some questions and answers about UK human rights legislation

hraWe found this interesting Q&A page on the Liberty website which explains some common misperceptions of UK human rights legislation.

People seem to think that human rights legislation allows anyone to do anything, which is not the case, and reproducing the information here may help in winder understanding.

Full credit goes to Liberty.

“The Human Rights Act does nothing for ordinary people”

The Human Rights Act protects everyone’s human rights; young and old, rich and poor, yours and mine. Anybody’s privacy could be breached by the prying eyes of the state, anybody can be wrongly accused of a crime, and anybody could fall foul of careless and insensitive decision-making by public authorities. Hopefully this won’t happen to you but if it did, you might find you need to rely on the Human Rights Act to help you.

“People now have a ‘human right’ to anything”

The Human Rights Act doesn’t protect an endless catalogue of rights. Indeed, it only protects 15 well-established fundamental rights and freedoms, like the right to life and free speech. Unfortunately however, myths abound about claims that have been upheld using the Act.

Many other democracies protect a far broader range of rights. In fact the rights contained in the Human Rights Act are so fundamental that no other modern democracy has scrapped their equivalent human rights legislation. Just as the USA would not scrap its Bill of Rights we should not scrap ours.

“The HRA is a charter for criminals and terrorists. It does nothing for victims”

The HRA protects the rights of everyone.  The protection of victims of crime and human rights abuses lies at the heart of human rights law. Indeed many of the rights protected under the HRA can be limited in the interests of public safety, in order to protect national security or to prevent an offence being committed.  The Human Rights Act also puts positive obligations on the State to protect victims.  The HRA requires serious offences like murder, terrorism and rape to be investigated by the police, and requires the State to take practical steps to protect people whose rights are threatened by others. The Act specifically states that those suspected of or convicted of crimes can be deprived of their liberty. Human rights law has given bereaved relatives the right to an independent public investigation into the circumstances surrounding the death of their loved ones, and the right to be involved in the investigation.

“The HRA prevents us from deporting foreigners”

There is no general prohibition in the HRA on the deportation of non-nationals.  If the Government decides that a citizen of another country who has limited ties to the UK should no longer be permitted to stay and can be safely sent back to their country of origin there is nothing in the HRA to prevent this.  However, under international human rights law the absolute prohibition on torture prevents countries from sending a person anywhere where there is a substantial risk that the person will be tortured.  This is entirely logical. If we abhor torture we must also abhor the outsourcing of torture – if governments were only prohibited from torturing their own citizens but permitted to send people to places of torture, there would be little distinction between deportation and extraordinary rendition.  Even before the HRA was enacted the Convention Against Torture, the European Convention on Human Rights and the International Convention on Civil and Political Rights prohibited the UK from deporting people to places of torture.

Depending on the facts of each individual case a person’s right to a family life may be interfered with in some cases if deported.  Home Office policy is to consider the facts of each case, including the reason for the deportation (i.e. whether a serious or minor offence has been committed), the length of time the person has been in the UK and whether the person has young children born in the UK or a British spouse etc.  This is the type of balancing exercise that would as a matter of policy be carried out by the Home Office regardless of the HRA, but the HRA has provided greater transparency, accountability and oversight of Home Office decisions in this area.

“The HRA needs amending to balance our rights to safety and security”

The Human Rights Act already requires the courts to balance human rights against the interests of public safety. There are some rights that are absolute and can never be limited, for example the right not to be tortured or enslaved. However most of our rights and freedoms can be limited where necessary and proportionate. For example, the Act allows the right to freedom, speech, protest and privacy to be restricted where this is necessary to protect public safety or national security. The Act specifically says those suspected of or convicted of crimes can be deprived of their liberty. Human rights law also requires the state to protect our safety and security.

Human rights legislation was drafted after the horrors of the Second World War. Thankfully, countries like the UK that have remained committed to protecting human rights have not seen a repeat of such atrocities. Sadly, war and civil unrest is still rife in countries where human rights violations remain a tragic reality. We cannot call for an end to rights abuses elsewhere in the world unless we show a commitment to protecting rights at home as well.

“The HRA has been imposed on us by the EU”

The HRA was independently passed by the UK Parliament in 1998.  It incorporates the Convention for the Protection of Human Rights and Fundamental Freedoms.  The Convention was adopted by the Council of Europe in 1950 – a body set up after WWII to promote democracy, human rights and the rule of law in Europe.  This body is completely separate to the EU.  The UK played a major role in the negotiations and drafting of the Convention which it voluntarily adopted in 1951.

“The HRA has cost the British tax payer millions. It’s a goldmine for lawyers”

One of the main reasons for the Act was the cost and delay caused by the fact that people could only enforce their human rights by taking cases to a court in Strasbourg. People’s rights can now be protected by British courts, which is far more efficient and cost-effective. But the Human Rights Act is not just about lawyers and courts. It has helped thousands of people protect their human rights without the need for costly court cases. Local authorities have reviewed their policies to make sure they treat the vulnerable with dignity and respect and users of a wide range of public services have used the Act as a tool to argue for better and fairer services.

“The HRA gives too much power to unelected judges”

Unlike most Bills of Rights and constitutional documents around the world, the HRA does not give the courts any power to strike down legislation.  Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament.  Under the HRA, if one of the higher courts finds legislation to be incompatible with human rights it can issue a declaration of incompatibility leaving it up to Parliament to decide how best to respond.

One of the cornerstones of our democratic system is an independent judiciary that interprets and applies the law.  Judicial decision-making is fundamental to the rule of law, and the powers given by the HRA to the courts fall squarely within this historic function.

“Police can’t put up ‘Wanted’ posters of dangerous criminals on the run”

Since 2007 there have been reports that police are unable to release photographs of dangerous criminals on the run because this would breach their human rights.  However, the HRA itself protects the right to life and imposes an obligation on the State to protect people from serious criminal attack.  In some circumstances the Government may actually be under a duty under human rights law to publicise photographs of dangerous convicted criminals if this would protect others.  The right to privacy can be limited for the protection and detection of crime as long as it is necessary and proportionate to do so – seeking to locate dangerous criminals and warn the public is certainly not a breach of human rights law.

“The right to privacy in the HRA prevents free media reporting”

The HRA protects both the right to privacy and the right to free expression. At times these rights can come in to conflict with one another and when they do a balancing exercise is required.  The HRA has on many occasions strengthened the free press. In particular the right to free speech (enshrined in Article 10) will protect media reports that are of public concern and in the public interest.  Indeed, the right to free speech finds its only protection in UK law under Article 10 of the HRA.  Article 10 has protected journalists from being required to disclose their sources and has provided protection of investigative reporting. However, it will not protect reports that are obviously false and may not protect intrusive reports relating to the private lives of individuals.  In some cases the right to privacy, in conjunction with the common law, will prevent media reports into the private lives of celebrities when it is not in the public interest to report such private details.

“British common law and Magna Carta protected our rights before the HRA”

The UK has a long and proud history in leading the development and recognition of fundamental rights and freedoms.  In fact, many of the rights in the HRA had their genesis in principles that emerged from Magna Carta, the 1689 Bill of Rights, the Habeas Corpus Acts and the common law.  However, the common law is liable to be overridden at any time by statute and provides no possible recourse when rights are undermined. There is also nothing in Magna Carta or other historic legislation that protects free speech, personal privacy, the right to protest, non-discrimination etc.  Many of the rights we have long taken for granted found no protection in domestic law until the HRA gave effect to them.  Until the advent of the HRA British residents had to rely solely on the good-will of government for protection or take the long and costly route to the European Court of Human Rights.  While the freedom of a person to do anything that is not prohibited by law is an important part of our constitution this principle gives no protection to individuals from misuse of power by the state or public bodies.

“The HRA is all about rights and not about responsibilities”

Human rights and responsibilities are inextricably bound together.  Rights mean little if others do not take responsibility to protect them.  And most rights are not absolute – instead they can be limited if necessary to protect the rights of others.  So, for example, the right to free speech explicitly carries with it duties and responsibilities, such as not to incite violence or wilfully defame others.

The HRA also explicitly states that none of the rights can be interpreted as implying that anyone has the right to intentionally destroy other people’s human rights or limit them more than is allowable under the HRA.  While many rights come with responsibilities rights are also universal and inalienable in nature. Self-evidently a person could not, for example, be denied a right to a fair trial because they are suspected of having committed a crime.

More in-depth coverage of human rights, together with examples of the legislation’s application can be found on the Liberty website.

Follow @martynjsymons

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