"Britain should adopt its own Bill of Rights to replace the Human Rights Act." Discuss.

Daniel Cormack
Flashcards by Daniel Cormack, updated more than 1 year ago
Daniel Cormack
Created by Daniel Cormack over 5 years ago


Higher Politics.

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Introduction - David Cameron and Tory's victory in the 2015 GE gave party mandate to follow through with their pans to scrap the current Human Rights arrangement contained in party's manifesto, and replace it with a so-called British Bill of Rights not bound by European Courts.
Introduction - Britain has long history of ensuring human rights are protected not only at home, but also abroad. Various documents exemplify this: Magna Carta 1215 and more recently through Common Law tradition. - European Convention of Human Rights (ECHR) - signed in 1950 as part of of the post-war efforts to ensure protection from events that occurred in 1940 was in place- set out absolute rights. - At present, human rights in the UK are protected by the HRA 1998 which ensures all rights set out in ECHR are met. -Whilst Tories concur Convention is sensible statement of principles to be adopted in GB, there is concern British people's needs not met.
Introduction - On one hand, proponents of Bill of Rights contend it would protect UK against influence of other systems - Tories believe that reformation of human rights law in UK is needed in order to give Strasbourg Court a different meaning. As well as this, it is argued that public support is in favour of a British Bill of Rights so it is time to introduce the Bill - sources such as Rowntree's survey on the "State of the Nation" and a ComRes survey can be examined to determine this.
Introduction - On the other hand, those critical Bill of Rights assert that such a document could limit rights people in Britain currently have. SNP argue replacing the HRA would be a "monumental mistake" because it would greatly diminish the UK's rights and standing worldwide. - Another argument against a separate Bill of Rights is that issues surrounding devolution could occur - if HRA repealed there is concern about how a new Bill could apply in devolved legislatures in NI, Wales and Sco. - Thus, the notion of whether Britain should adopt its own Bill of Rights is one which is subject to intense debate as there are clearly very strong views on both sides of the argument.
Arguments in favour - UK's influence protected from other systems. - Proponents contend UK's influence would be protected from other systems. Tory Party accuses the European Court of Human Rights as developing "mission creep", basically meaning that Strasbourg has the opportunity to adopt a principle of interpretation regarding the Convention as a living instrument. - Caused great deal of concern - Tory manifesto - Strasbourg has attempted to overrule decisions of the UK Parliament in past and overturn UK courts application of Convention rights. - Lord Judge, the former Lord Chief Justice, complements this view when criticising the influence Strasbourg has and imposing its will on parliament. This is important because Lord Judge served in a significant position in the legal profession and will have an insight regarding what is more beneficial for UK's human rights enforcement.
Arguments in favour - UK's influence protected from other systems. - Example - Strasbourg's attempts to overrule UK court's decisions in cases involving foreign nationals who have committed serious crimes in GB, but have used the Convention in order to remain in country. - Eg, Abu Qatada - radical cleric - was allowed to stay in Britain due to European Court of Human Rights believing there was risk of him being tortured in Jordan for evidence. Stephen Bollard - journalist for Express - expands on this, by arguing that Human Rights law is out of control because foreign criminal's rights are being put above those of British citizens by an unfair system administered by the EU. - This clearly has some merit as GB made decision to deport Abu Qatada, but Qatada used rights contained within HRA 1998 to avoid deportation through appeal. - John Lamont MSP offers insight into this issue - the new Bill of Rights would definitely protect fundamental rights, but ensure that abuse is prevented, much like the case of Abu Qatada. - While this is clearly a concern, the frequency of such cases arising is very rare and so hinders argument for BOR to extent.
Arguments in favour - UK's influence protected from other systems. - However, Merris Amos, academic specialising in Human Rights Law - must be recognised that European Court of Human Rights has no ability to overrule Parliament or UK Supreme Court. Argues further stating how judgements remain international law until acted upon by parliaments or courts in the UK. - So, the European Court of Human Rights simply does not have the power the Tories claim it does, and if Parliament does not like what courts have done, laws can be changed back again. - Clearly, while Conservative Party's arguments deserve some merit regarding intervention in the UK's decisions, it is clear from scrutiny by an academic that the party's manifesto could be deemed as untrustworthy and excessively biased.
Arguments in favour - Support for the Bill - Support from both public and other organisations can be examined in order to establish whether BBOR should be adopted. - Rowntree's "State of the Nation" survey - 77% of those polled concurred that Britain needed a Bill of Rights to protect the liberty of the individual. While this is clearly in favour of a BBOR, it must be noted that there was no clear information regarding how many participants were asked and their age, so this must be taken into account when considering source's trustworthiness. As well as this, there were fewer consensuses about the reasons why a BBOR is even needed and how the existing relationship between UK and existing human rights protections under HRA should change. - Alternatively, a ComRes survey commissioned by Amnesty International found that 46% of Britons did not want any of rights in HRA taken away from them. This could cause dissatisfaction if a BBOR is introduced and a right is removed; it is unclear in any proposals if all rights would be kept. In this case, there is a significant number of people sceptical about a BBOR.
Arguments against - Limit rights of citizens - However, there are several key arguments against BBOR. - Firstly, those against a BBOR argue that its introduction would greatly limit rights of many citizens of country. SNP's position - clear opposition to UK government's position due to fact the party believes UK government has no idea itself how it will work - this will create legal confusion and harm most vulnerable in society who need hr protection. - Although SNP is clearly opposed, Conservatives challenge their view. Alex Johnstone MSP - Nicola Sturgoen and SNP simply fail to comprehend the premise of BBOR is not to abolish concept of human rights. - Evidently there is some concern as to perception of the propose BBOR by other parties.
Arguments against - Limit rights of citizens - However, a report on worldwide state of human rights from Amnesty International had some damning findings. Kate Allen, Amnesty International's UK director, the UK is setting a dangerous precedent to the world and this is seen as gift to dictators worldwide as it undermines ability of UK to assure other countries uphold rights and laws. - Argument deserves merit - complements view of SNP; findings viable because organisation campaigns for human rights to be respected, so may not be receptive to change of the current provisions in Britain.
Arguments against - Could be subject to legal challenges. - According to several UK constitutional lawyers, there is risk of legal minefield ahead should Bill of Rights make it through parliament and become law. - State that within HRA there are guarantees in the devo settlements of Scotland, Wales and NI, if this protection was not to be respected, a challenge to the lawfulness of BBOR would surely take place and may result in changes only taking place in England. - Supported by Robert Hazel and Bob Morris - contend that under Scotland Act, Northern Ireland Act and Government of Wales Act - devo govs are bound to comply with ECHR, which effectively provides bill of rights in their devolved constitutions. - This reflects different functions of devo govs and highlights how they do not fact same pressures as Home Sec does regarding terrorism etc, so UK gov will have diff frustrations with HRA than Scottish gov per se.
Conclusion In conclusion, the extent to which Britain should adopt its own Bill of Rights is debatable. On one hand, those in favour of a British Bill of Rights contend that Britain’s influence is currently interfered with by other systems, in particular with cases involving Human Rights of foreign nationals. - . Moreover, it is clear from a variety of surveys too that a British Bill of Rights appears to be popular among the general British public, although there was a lack of justification for wanting a Bill of Rights. However, on the other hand, those against Britain adopting its own Bill of Rights assert that the rights of citizens would be limited by the introduction of such a Bill and this means that Britain’s standing worldwide as a leader of Human Rights could be diminished.
Conclusion - As well as this, an argument is put forward by a series of prominent constitutional lawyers in Britain that its introduction would be complicated due to the devolved parliaments of Wales, Scotland and Northern Ireland being wary of changes to Human Rights legislation. Thus, the argument that Britain should adopt its own Bill of Rights is invalid because even though some of the arguments put forward by the Conservatives have some merit, there is significant evidence against the information they set out, primarily from legal experts like Merris Amos, which simply brings their arguments into disrepute. Therefore, Britain should not adopt its own Bill of Rights and should retain the Human Rights Act 1998.
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