Human Rights Legislation is NOT Strong Enough

Some people, of a more conservative persuasion, have recently been expressing their desire to withdraw from the European Convention on Human Rights and repeal the Human Rights Act. They believe that doing so will allow the state to deport suspected terrorists, take greater control over our legislation and avoid silly judicial myths like Catgate.

I however think the current legislation severely lacking.

Consider Article II, the right to life, it fails to take a stand on what constitutes abortion,this means that it doesn't really address the multitude of human rights abuses in abortion cases, pro-life or pro-choice irrelevant the court should have a clearly defined mechanism to enforce some kind of policy on its member states so they cannot introduce draconion abortion legislation.
It also is too lenient towards deaths caused by state brutality under the label of terrorism. It doesn't consider animal life the same as human life, despite being titled right to life, not the right to human life.

Article III doesn't even consider sleep deprivation or noise as torture, there has been absolutely no attempt to prosecute people who conspired with the Bush administration to create detention camps despite them being very well documented in a recent CIA torture report.

Article III outlaws slavery but still gives states the right to compel people to serve in the military? It still gives the state the right to compel people to labour when imprisoned (possibly wrongly as well might I add), and during an 'arbitrary state of emergency'.

The document seems a bit of a shambles. It's arbitrary, hard to enforce and far too lenient. It also doesn't seem to address anything that is not already being dealt with by state courts.

Reply 1

gtd2018

1

Wouldn't a UK Bill of Rights be a constitution for the UK? Otherwise surely the supremacy of the parliament would be able to overrule anything in the bill of rights quite easily.

Reply 2

tashkent46

OP

20

Original post by gtd2018

Wouldn't a UK Bill of Rights be a constitution for the UK? Otherwise surely the supremacy of the parliament would be able to overrule anything in the bill of rights quite easily.

Not exactly, the ECHR already acts in this capacity and many courts undertake judicial review of legislation and administration, in this sense the supremacy of Parliament is a little misguided as it suggests it is absolute. Parliament is not absolute and has never been so.

Reply 3

gtd2018

1

Original post by tashkent46

Not exactly, the ECHR already acts in this capacity and many courts undertake judicial review of legislation and administration, in this sense the supremacy of Parliament is a little misguided as it suggests it is absolute. Parliament is not absolute and has never been so.

The ECHR is hotly debated and its supremacy comes from the fact that it's considered higher law in status, essentially meaning that a law would need to be passed that said the ECHR is void, but there's literally nothing stopping the parliament from doing that other than a threat of being subject to penalities from other countries - such as what Russia has been doing.

It has technically been absolute in other words. A bill of rights would need to have constitutional status to have any effect. The ECHR has strong "gang" backing from the UK's membership to the EU but the BoR does not.

Reply 4

tashkent46

OP

20

Original post by gtd2018

The ECHR is hotly debated and its supremacy comes from the fact that it's considered higher law in status, essentially meaning that a law would need to be passed that said the ECHR is void, but there's literally nothing stopping the parliament from doing that other than a threat of being subject to penalities from other countries - such as what Russia has been doing.

It has technically been absolute in other words. A bill of rights would need to have constitutional status to have any effect. The ECHR has strong "gang" backing from the UK's membership to the EU but the BoR does not.

If the ECHR is higher law in status how can any law be passed to 'void' it? The job of the ECHR isn't to legislate, not beyond case law anyway, but to enforce already existing legislation, if any administration breaks it they can be held accountable. Yes there is, in theory no way of holding any Parliament accountable, but in practicality the judicial review of any new legislation and scrutiny of the Lords would make it difficult.

The UK already has a BoR in the Human Rights Act and the Bill of Rights, they aren't as formal as say, the US constitution but they are similarly constitutional law.

I don't think it would work substantially anyway, as constitutions exist in the hearts of people, no constitution can exist where liberty does not exist, as they will be discarded as nothing more than writing or rules.

This is why a strong judiciary is needed to prevent Parliament overstepping, the ECHR currently falls short of this.

Reply 5

gtd2018

1

Original post by tashkent46

If the ECHR is higher law in status how can any law be passed to 'void' it? The job of the ECHR isn't to legislate, not beyond case law anyway, but to enforce already existing legislation, if any administration breaks it they can be held accountable. Yes there is, in theory no way of holding any Parliament accountable, but in practicality the judicial review of any new legislation and scrutiny of the Lords would make it difficult.

The UK already has a BoR in the Human Rights Act and the Bill of Rights, they aren't as formal as say, the US constitution but they are similarly constitutional law.

I don't think it would work substantially anyway, as constitutions exist in the hearts of people, no constitution can exist where liberty does not exist, as they will be discarded as nothing more than writing or rules.

This is why a strong judiciary is needed to prevent Parliament overstepping, the ECHR currently falls short of this.

The ECHR supersedes any other law, for example a law allowing beer to be sold at "anytime" can be challenged by a Church who thinks beer should not be sold on its property on Sundays due to religious freedom, but there is nothing stopping the UK parliament making a law that targets the offending points of ECHR and provides direction to the UK courts to force beer to be sold on Church property on Sundays.

Furthermore, the main tool for the ECHR to be implemented is the action of other countries. For example, withholding UK assets in France because the UK needs to pay the ECHR a fine, albeit it is unlikely that France would take such a bold step - historically the EU was the main "gang" that the ECHR could rely on but this is in doubt ever since Brexit.

The UK only abides by the ECHR due to convention. There is literally nothing stopping a UK government from disobeying the ECHR without penalty. A BoR would need to be constitutional for it to have any effect - especially since there is not other "gang" there to enforce it.

Reply 6

username1799249

19

Original post by tashkent46

Yes there is, in theory no way of holding any Parliament accountable, but in practicality the judicial review of any new legislation and scrutiny of the Lords would make it difficult.

That doesn't really make sense. The government can legislate with the will of parliament. But the government can not act unlawfully and have in recent years been challenged successfully in the courts over policies that contradict articles such as the European Human Rights laws. If anything, post Brexit we as citizens will be in a weaker position and the government will have more power to do as it wishes, in particular to our own human rights. In this country (England) we have a history of lagging behind the rest of the forward thinking world and I am rather pessimistic that if the European Human Rights is abolished, any replacement bill or rights would be vastly inferior, especially if implemented by a Tory government.

Reply 7

Notoriety

22

Original post by tashkent46

If the ECHR is higher law in status how can any law be passed to 'void' it? The job of the ECHR isn't to legislate, not beyond case law anyway, but to enforce already existing legislation, if any administration breaks it they can be held accountable. Yes there is, in theory no way of holding any Parliament accountable, but in practicality the judicial review of any new legislation and scrutiny of the Lords would make it difficult.

You might want to read Lord Sumption's criticism of the ECtHR and its status as a "living instrument".

https://www.nottingham.ac.uk/hrlc/documents/specialevents/lord-sumption-speech-131120.pdf

Original post by tashkent46

Not exactly, the ECHR already acts in this capacity and many courts undertake judicial review of legislation and administration, in this sense the supremacy of Parliament is a little misguided as it suggests it is absolute. Parliament is not absolute and has never been so.

When the court thinks an Act is not compliant with ECHR, they give a declaration of incompatibility but this doesn't actually render the Act void; just hints at the Govt to change it. Interpreting legislation with a bias towards ECHR compliance, under section 3 HRA, is rather limited. It is designed to fill gaps rather than bring review the legitimacy of legislation. Look under section 19, statement of compatibility. A Minister of the Crown is required to state that the proposed Bill is in compliance with ECHR, but under 19(1)(b) the Minister of the Crown can say he is unable to make the statement but the Govt wishes to proceed anyway. There is wide scope, therefore, for ECHR non-compliance and HRA does not limit Parliament's absolute sovereignty

Human Rights Legislation is NOT Strong Enough

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