Human Rights and Sovereignty
5th September 2016

alex photo blog TMSithThe current Conservative Government wants to remove the Human Rights Act (HRA). This has been their policy for many years, reaffirmed by each new Justice Minister, though no actual proposal has yet been put forward (largely because it’s quite hard to turn nonsense into a concrete proposal). In this post, I’ll talk about two of the points that are commonly seen arguing for this removal and how they are a steaming pile of poo: there is a bit of warmth to them, but they stink. The proposal to repeal (legal term for remove) the HRA is TERRIBLE: it has no positive effect and removes some of our individual protection.

I wrote this post in one go, not quite finely crafted or edited like some others might be. Wanted to vent a bit, and try and keep it a lighter tone than my usual serious-ish one.


Background: the Human Rights Act

The UK has been signed up to the European Convention of Human Rights (ECHR) for decades, but this required people to go to the European Court of Human Rights in Strasbourg to have their cases heard. This costs a lot and takes about five years (long waiting list!), so the HRA was passed to ‘bring rights home’, meaning that UK courts were able to hear ECHR cases. It is separate to the ECHR, which we are still signed up to – that is international law (ie nothing to do with our courts), whereas the HRA is domestic law and brings the rights and freedoms from the ECHR into UK law. The ECtHR (the courT) now works as a court of appeal on human rights cases, but is technically not a court of appeal because it is outside our system and hears the question as a new case – though that’s a legal technicality and it basically works the same way.

Technically, they are separate, and UK judges can (and do) sometimes disagree with Strasbourg on what a right means. Section 2 HRA says that a court or tribunal determining a question that has arisen in connection with a Convention right must take into account any relevant Strasbourg jurisprudence: they can’t ignore it, but they aren’t bound to follow it, so if they think it is wrong for a good reason then they can decide something else. Cleverly designed this, to make sure that our courts still have the last word!

Human Rights are all about protecting people and give courts the power to hear cases. Most countries have them in their constitution, but as we don’t have a constitution, we never had them – instead, our courts could only decide something if parliament made a law to allow them to decide something (a slight simplification, but pretty much true). They are a Good Thing.

Oh, and under the ECHR and HRA, the UK is allowed to have a higher level of human rights protections, but not a lower one, than the ECHR and European Strasbourg court says… ergo if they want to remove the HRA or ECHR, there will be a lower standard of human rights protection! There’s no other way it can be.


The Fraud

Looking for a statement to criticise, I found one in a Conservative Party document called ‘Protecting Human Rights in the UK’:

Labour’s Human Rights Act undermines the sovereignty of Parliament, and democratic accountability to the public.” – taken from a Conservative Party document called ‘Protecting Human Rights in the UK’.

Orwell would be proud/unproud of this for many reasons. Firstly, calling it ‘Labour’s Human Rights Act’, which is a bit dodgy when the Conservatives supported it too.

Secondly, the bit about ‘democratic accountability’, because it’s a twisted view of democracy – I’ll return to this later.

And thirdly, the notion that it undermines the sovereignty of Parliament. This is not true, and is used (as it was in the Brexit campaign) because it makes it sound like good ol’ Blighty is under attack from those, er, evil and unelected people protecting our rights against our own government who seeks to remove them: an emotional appeal to distract people from the reality of what’s going on.


What is Parliamentary Sovereignty?

Parliamentary Sovereignty is the notion that Parliament is Sovereign – well-named, at least. Parliament has Supreme Power, it can do anything it wants. In textbooks, the example that ‘Sir Leslie Stephens (1882) stated that ‘parliament could legislate to have a blue eyed babies put to death’ is used in an absurdly proud way: it is meant to show power in the face of absurdity, but means we are trumpeting the fact that our lawmakers could legalise genocide and be unstoppable… I won’t comment further about whether this is a good idea to have, apart from to say that no, it is not, and we would be better off having something that every other modern state has: a constitution.

Now, we’ve had this for many hundreds of years – since our King passed his power on to Parliament. The people who made and voted in the Human Rights Act were well aware of this too. In fact, they even made it so that the Human Rights Act didn’t violate parliamentary sovereignty!

They made it so that even if a British court finds an act of parliament to be in breach of human rights, it is still valid! All our courts can actually do is what’s called a ‘Declaration of Incompatibility’ (Section 4 HRA), which is that they solemnly declare ‘This does not fit with human rights’. It is still valid, they just ask Parliament to do something about it. Parliament usually does, but has not always.

What about that evil European court in Strasbourg that keeps protecting our rights for us? Well – it’s the same story! All they can actually do is say that something is in breach of the European Convention of Human Rights. It doesn’t actually change anything though!

The one example that they usually use is Prisoner Voting. The European Court of Human Rights has ruled in repeated cases, the first one being Hirst v UK in 2005, that the current UK law which says that no prisoner gets to vote is in breach of the right to vote. Yet… prisoners still cannot vote! Despite at least three cases in Strasbourg plus a few in the UK courts all saying this, NOTHING HAS CHANGED.

So what’s really going on? There is NO issue with parliamentary sovereignty and the human rights act. What is really going on is that the government is having a tantrum, like giant man-babies, that someone is telling them they are making mistakes (by breaching human rights standards). And they are trying to use this as a propaganda point, calling on a Great British Tradition of parliamentary sovereignty to try and make us feel warm and patriotic and support their poo-filled proposal.

Oh, plus a second aspect. Often, human rights is used to limit things that the government wants to do, like deport people when they have family here or to go and be tortured in another country, or to say that when we killed Iraqis during our (illegal) invasion, we are responsible for their death if it wasn’t justified. The government doesn’t like the fact that courts can tell them they were wrong… but they can’t straight out say that that’s their real motive, so they pretend it’s this Grand Great British Principle of Parliamentary Sovereignty they are defending.


Democracy and the Rule of Law

As well as Parliamentary Sovereignty, they claim that the Human Rights Act “undermines democratic accountability”.

This is based on a very narrow (and wrong) view of what democracy is: they claim that democracy is 100% about what parliament does, because parliament is elected.

This is nonsense.

There is much more to democracy than just what parliament does – one of the big principles is known as Rule of Law, which is the idea that there are Laws that govern things. There’s also some more complicated stuff about things that make up democracy: a free press, an informed and educated public, proper elections, and so on. If everybody is lied to by the media and then votes for something, that isn’t really democracy! Oh, and relevantly here: a judicial system!

It is widely recognised that having courts is part of being a democracy: without them, there is no legal system, and no legal system means no democracy! The Rule of Law idea is part of and similar to this too: the idea is that there are laws that mean that courts have power to make decisions on things, as part of democracy. It’s similar to when they talk about “unelected judges”: of course they are unelected, that’s the point of a judge!

Part of the Human Rights Act is that it creates laws that the British courts can hear cases and make decisions about. This is a key part of democracy, and just because it disagrees with what the government or parliament does does not make it anti-democratic. It is fraud to say as much.



There is lots of other stuff I could say about the Human Rights Act, but I’ve stuck with these two factual points.

I’ll say it here clearly: I believe it to be fraud when a politician or newspaper reports something that is not true. This includes statements such as ‘human rights act goes against parliamentary sovereignty’. There is no place for fraud in proper political discussion, and the above two points are fraud because they are a stinking pile of fresh poo.

What is really going on is that the Conservatives don’t like the human rights act because they want more power. Power is (at least here) a zero-sum game: if the courts have more power, parliament and government have less power. They don’t like the fact that the courts – both British and European – can tell them that they are wrong, even when this doesn’t actually have a legal force because it is only a declaration. They also don’t like the fact that human rights protect us, because our protection is a limitation of government power.

It is SCARY that they are so openly against human rights. We must BE VIGILANT and FIGHT THIS: it is the path towards fascism. qq