Why we should keep the Human Rights Act

This letter was sent in response to Jan Nedvídek’s article discussing the Human Rights Act.

Sir,

In his comment piece of 6 June 2015 (Strasbourg having a say on British civil liberties), Jan Nedvídek states that “any judicial decision made by the Supreme Court in London can be overturned by the Strasbourg court”. This is incorrect. The Strasbourg Court is not an appeal court and the Supreme Court is the final arbiter of UK law. The Human Rights Act is clear: British courts are not required to follow the judgments of the European Court of Human Rights blindly – they must only ‘take account’ of them. Domestic judges can, and often do, depart from Strasbourg case law to take account of the United Kingdom’s own laws and traditions. In a number of recent cases, including on whole life tariffs, the Strasbourg Court has revisited and refined its earlier judgments following detailed reasoning on an issue by the Supreme Court applying the HRA.

Repealing our HRA would only make matters worse – Strasbourg judges would be denied the chance to consider a British interpretation of European Convention rights. Before the HRA, British courts had no say in human rights decision-making, and British claimants had to take their cases to European Court instead. One of the main reasons for the HRA’s creation was to end the cost and delay of the long road to Strasbourg. Under the proposed “British Bill of Rights and Responsibilities”, if people’s rights cannot be enforced properly by UK courts, they will have to take claims to Strasbourg – taking us back to the bad old days of decade-long waits for justice and sky-high costs.

The common law has a proud history of protecting fundamental rights, but when Parliament legislates to override common law rights or oust judicial oversight, the common law provides no recourse. The nature of the cases taken to Strasbourg before the HRA came into force show the inadequacy of common law rights protection – from the criminalisation of homosexuality and the ban on gay people serving in the armed forces, to the lack of a legal framework governing the actions of the security services and corporal punishment against children. But far from being an alternative to it, the Convention gives hard-edged protection to many common law values.

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There are also huge benefits to being part of a multilateral system that protects human rights – not least the wisdom that Strasbourg judges have brought to recent cases against the UK relating to indefinite retention of innocents’ DNA; discriminatory stop and search without suspicion; and the right of a British Airways employee to manifest her religion by wearing a small cross around her neck.

Mr Nedvídek also states that the Government’s policy “does not eradicate human rights”. This is true – but, according to former Justice Minister Chris Grayling’s October strategy paper, it will limit the use of human rights law to the “most serious cases”, with “trivial” cases struck out of court and re-draft the meaning of substantive rights – an unambiguous statement of the Government’s intent to end the universality of human rights and let partisan politicians decide which rights we deserve, and whose matter most.

The HRA was introduced with cross-party support in 1998. It enshrines into law the European Convention on Human Rights, Winston Churchill’s post-war legacy, drafted by some of our greatest legal minds. It is one of the few laws that requires the state to protect our safety and national security, and it has let countless ordinary people – soldiers, survivors of rape, domestic violence and slavery, bereaved families, journalists – hold the state to account.

Cherwell readers can learn more about those the HRA has helped, and why we are fighting to save it, at saveourhra.org.uk.

Yours faithfully,

Bella Sankey

Director of Policy, Liberty