{"id":492,"date":"2016-04-22T09:33:35","date_gmt":"2016-04-22T08:33:35","guid":{"rendered":"https:\/\/blogs.ncl.ac.uk\/nelr\/?p=492"},"modified":"2016-04-22T09:33:35","modified_gmt":"2016-04-22T08:33:35","slug":"is-the-bill-of-rights-right","status":"publish","type":"post","link":"https:\/\/blogs.ncl.ac.uk\/nelr\/2016\/04\/22\/is-the-bill-of-rights-right\/","title":{"rendered":"Is the Bill of Rights right?"},"content":{"rendered":"<p><a href=\"https:\/\/blogs.ncl.ac.uk\/nelr\/files\/2015\/09\/HRA.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignleft size-medium wp-image-445\" src=\"https:\/\/blogs.ncl.ac.uk\/nelr\/files\/2015\/09\/HRA-300x199.jpg\" alt=\"HRA\" width=\"300\" height=\"199\" srcset=\"https:\/\/blogs.ncl.ac.uk\/nelr\/files\/2015\/09\/HRA-300x199.jpg 300w, https:\/\/blogs.ncl.ac.uk\/nelr\/files\/2015\/09\/HRA-1024x680.jpg 1024w, https:\/\/blogs.ncl.ac.uk\/nelr\/files\/2015\/09\/HRA.jpg 1416w\" sizes=\"auto, (max-width: 300px) 100vw, 300px\" \/><\/a><\/p>\n<p>It is no secret that the Conservative Party has always been critical of the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into domestic law. Many of its prominent members have spoken negatively of it and, instead, advocate a British Bill of Rights. In the Party\u2019s 2010 election manifesto, it proposed to \u201creplace the Human Rights Act with a UK Bill of Rights\u201d. Likewise, in its 2015 manifesto the Party made the same promise but added that this proposal \u201cwill break the formal link between British courts and the European Court of Human Rights, and make our own Supreme Court the ultimate arbiter of human rights matters in the UK\u201d. Although Michael Gove, the Secretary or Justice, announced before the House of Lords Constitution Committee that the awaited Bill of Rights consultation have been postponed causing a delay in the government\u2019s plan to scrap the HRA again, the question of whether a Bill of Rights is <em>right<\/em> for the UK remains controversial. With public outcries for the HRA\u2019s repeal demonstrated by the Policy Exchange\/YouGov statistic of 75% of Britons thinking the HRA are a \u201ccharter for criminals\u201d, there seems to be strong support for this proposal. However, is this figure a product of the media and many politicians\u2019 widespread apathy towards the Strasbourg court\u2019s controversial rulings, especially in foreign suspect cases, or does it show genuine need for Britain to build a home-grown Bill of Rights?<\/p>\n<p>In a <a href=\"http:\/\/www.publications.parliament.uk\/pa\/cm201516\/cmhansrd\/cm150908\/debtext\/150908-0001.htm#15090844000011\">House of Commons debate<\/a>, Dominic Raab, the Minister for Human Rights, shed light on some of the perceived issues of the HRA which a new Bill of Rights will seek to solve, which <a href=\"http:\/\/publiclawforeveryone.com\/2015\/10\/08\/public-law-update-6-a-british-bill-of-rights\/\">Mark Elliott<\/a> identified, including:<\/p>\n<ul>\n<li>Granting \u201cgreater authority for the Supreme Court\u201d so less will be \u201csubordinated\u201d to Strasbourg;<\/li>\n<li>Stopping rights from being \u201cdistorted by judicial legislation\u201d;<\/li>\n<li>Stopping rights from \u201cbeing abused by serious and serial criminals\u201d;<\/li>\n<li>And ensuring \u201csensible application and proper respect\u201d for the \u201cdemocratic role\u201d of Parliament.<\/li>\n<\/ul>\n<p>In answering questions from other MPs, Raab\u2019s responses are vague in analysis. However, it is apparent that the Party\u2019s concerns remain unchanged and seemingly intertwined.<\/p>\n<p>First, there is concern towards the supposed \u201cabuse\u201d of rights by claimants who are seen as undeserving, namely foreign suspects who attempt to prevent deportation using human-rights laws after their prison release. As seen in the reactions to the Strasbourg court\u2019s decision against the deportation of the suspected terrorist Abu Qatada, there is a great will for there to be a Bill of Rights with many antagonising the HRA. However, the idea that a human-rights claimant is \u2018underserving\u2019 does not rest well with the conventional notion of human rights. The ECHR was written after the horrors of the Second World War when it was believed that some fundamental rights, such as the right to be protected against inhuman and degrading treatment, should be enshrined with no get-out clause or exceptions. Some rights are fundamental in ensuring fair treatment and protection for all to prevent discrimination against particular groups such as foreign criminals from arbitrary power and populist opinions. Therefore, some human rights should be above the whims of parliament to protect minority interests. Introducing a Bill of Rights imply that, potentially, rights of these individuals will be compromised as the HRA is viewed as firearm for \u2018undeserving\u2019 claimants. With the notion that a human-rights claimant can be \u2018undeserving\u2019 and thus showing a lack of equal and fair treatment, just because the idea of a Bill of Rights is politically right, it does not mean it is morally right.<\/p>\n<p>Second, the Party is also concerned over a judicial \u201cmission creep\u201d; the court is said to have manipulated the interpretation of a rational set of human-rights laws to the \u2018undeserving\u2019 claimant\u2019s advantage. This contention illustrates the tension between the courts and politicians and their institutional role regarding the separation of powers; the crux of the issue is the argument that unelected judges should not apply human-rights law to contentious matters of public interest, such as the balance between the threat of deportation of a suspected terrorist against the potential danger of their stay to the public. The compromise between the public\u2019s interest of being protected and the foreign suspect\u2019s interest in pursuing a family life in the UK is therefore a domestic issue requiring a political value judgement. The judiciary, especially a foreign one, cannot claim democratic mandate to make judgements on cases this heavily involving the public. However, which other institution can we rely on to make such decisions? If anything, contentious cases require neutrality to a larger extent to avoid tyranny of the majority and to reach a fair balance. Politicisation of the decision risks the scale to be tipped heavily in favour of the frantic public who are highly responsive to the media\u2019s exaggerated portrayal.<\/p>\n<p>Lastly, Raab revealed a concern previously expressed by former Justice Secretary Chris Grayling, who advocated for \u201cour Supreme Court to be supreme again\u201d, that there should be an expansion in the UK Supreme Court\u2019s authority in the expense of the Strasbourg court. This suggests that the concern is not with human-rights decisions by judges, but by specifically European judges. However, the argument lacks strength as it is unclear how and if the outcome would be different since all judges are supposedly politically neutral. Additionally, refusal to implement the Strasbourg court\u2019s judgement may impact the obedience of other Council of Europe members. Recently, a bill in Russia was supported allowing Moscow to ignore judgements of international rights courts, foreshadowing the country\u2019s rejection of the ECHR.<\/p>\n<p>So, is the Bill of Rights <em>right<\/em>? Politically, it is obvious that it will please many voters. However, one cannot help but be sceptical about why the Conservative Party endorse the proposal so badly and what human-rights law will look like if they were to shape it to their liking. This is without even considering the international impact and the obstacles of backbench MPs, the Lords and the devolved assemblies.<\/p>\n<p>Carmen Huang (Law)<\/p>\n","protected":false},"excerpt":{"rendered":"<p>It is no secret that the Conservative Party has always been critical of the Human Rights Act 1998 (HRA), which incorporated the European Convention on Human Rights (ECHR) into domestic law. Many of its prominent members have spoken negatively of it and, instead, advocate a British Bill of Rights. In the Party\u2019s 2010 election manifesto, &hellip;<\/p>\n<p><a href=\"https:\/\/blogs.ncl.ac.uk\/nelr\/2016\/04\/22\/is-the-bill-of-rights-right\/\" class=\"more-link\">Read More<\/a><\/p>\n","protected":false},"author":5056,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[61],"tags":[],"class_list":["post-492","post","type-post","status-publish","format-standard","hentry","category-carmen-huang"],"_links":{"self":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/posts\/492","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/users\/5056"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/comments?post=492"}],"version-history":[{"count":1,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/posts\/492\/revisions"}],"predecessor-version":[{"id":493,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/posts\/492\/revisions\/493"}],"wp:attachment":[{"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/media?parent=492"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/categories?post=492"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ncl.ac.uk\/nelr\/wp-json\/wp\/v2\/tags?post=492"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}