In our collective memory, some periods stand out as the landmark legislation of the time, such as the 1945 parliament for the welfare state, or 1987 for the poll tax. In 1997, Tony Blair’s most radical reforms were Scottish and Welsh devolution and the Human Rights Act. Fifteen years later, all three are under strain but the shrillness of the responses is distorting the arguments.
Since the election, the Tory majority makes the government’s pledge to replace the Human Rights Act (HRA) with a British Bill of Rights a real possibility. Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken, assuming the worst when it is far from clear that a new framework of British rights would be any less protective of individual rights than the HRA. A British Bill of Rights is a good idea.
Listening to the clamour against this, one gets the impression that the United Kingdom lived in a human rights vacuum from 1951-2000 before the HRA came in. Then, UK courts were not the final arbiter in judgements and cases ended up in Strasbourg at the European Court of Human Rights (ECHR) for final rulings.
Yet even the architects of the act admit that its functioning has been different from what was intended. Section two of the act states that UK judges “must take account” of ECHR jurisprudence. This has been interpreted too literally by UK judges in their enthusiasm to embrace the European court’s judgments. Ordinarily, when national courts interpret statute and precedent they tend to reflect national culture and tradition; but when a court with judges from 47 countries rules as a sort of Supreme Court for Europe, there is an unwelcome uniformity of rulings which disregard different values and political cultures across the states that are subject to its rulings.
In Britain, the HRA has caused a stretching of what it means to protect basic human rights. Recent rulings by the UK courts that human rights law applies to UK defence forces in foreign battlefields have constrained in-theatre decisions and imperilled soldiers’ lives. The implications of the ruling were more wide-ranging than the UK court intended, and the effect is palpable.
Alongside this, the ECHR is widely regarded as expansionist, on account…