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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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The new Conservative government in the United Kingdom has promised to scrap the Human Rights Act. The rationale that they give for this centres around originalism (claiming that the HRA has been interpreted beyond its original scope) and national self-determination (the EU telling the UK government what laws it can pass).

I remain worried about this. The Human Rights Act sets out a series of principles that seem, to me, to be fairly uncomplicated:

  • Right to life
  • Freedom from torture and inhuman or degrading treatment
  • Right to liberty and security
  • Freedom from slavery and forced labour
  • Right to a fair trial
  • No punishment without law
  • Respect for your private and family life, home and correspondence
  • Freedom of thought, belief and religion
  • Freedom of expression
  • Freedom of assembly and association
  • Right to marry and start a family
  • Protection from discrimination in respect of these rights and freedoms
  • Right to peaceful enjoyment of your property
  • Right to education
  • Right to participate in free elections

The repeal of these rights does not, of course, instantly mean that the UK government would violate them. There may have been certain of these rights that were indeed not infringed by any UK government action and extant law even before 1998. However, there was no supranational framework that prohibited the UK government from passing laws that would infringe such rights. This, then, doesn’t make them “rights” in the sense of inviolability, it makes them conditions of living that a sovereign authority without any supra-national oversight may choose to rescind but that just happens, at present, not to violate. For instance, the death penalty. We didn’t have the death penalty in 1997 but there was nothing to stop a majority in the House of Commons that wanted it to pass the legislation (and as has been posted many times in the last twenty-four hours, in the 1990s Michael Gove, the new justice secretary, wanted to bring back hanging). The HRA put a check on that through an international binding agreement. So the issue is, for me, one of international law as a balance against unlimited national sovereign authority. It is not without problems, of course, but struck me as a far better idea, especially given how these principles seem to me fairly basic.

The UK government wants to replace the HRA with a “UK bill of rights”. Will this go as far as the HRA, though? Certainly, I suspect that some members of the Conservative party would like to rescind:

  • Right to life (through death penalty)
  • Right to a fair trial and no punishment without law (in the case of terrorism, as per Guantanamo but also through imposing costs in the legal system that make it impossible for the poor to gain justice)
  • Freedom from slavery and forced labour (through workfare-like programmes)
  • Freedom of assembly and association (to restrict protest)
  • Right to participate in free elections (restrict to property owners – seriously seen this mooted)

However, whether or not they could actually pass such matters is different to fringe individuals wanting to. Without the HRA, though, it makes it much easier to do so.

What this boils down to for me, though, is whether rights are deemed to be inviolable and what international oversight can do to make sure that this is the case. I would like to see national sovereignty and self-determination (at a national level) restricted in the case of human rights. If they are rights, they should be inviolable and with some binding permanence. This requires a way to make it harder to violate such rights through binding permanence. Slowing down the process of undoing such binding permanence is the best that international law can do and this was the value of the HRA within relatively short-terms of parliament. Interestingly, however, the Conservative party now seems to advocate a moral relativism (which should be against their principles). They seem to object to an overriding, immutable set of inviolable principles in favour of locally determining what is right and wrong. In the case of the principles in question, I feel doubtful about whether this is a great idea.