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A British Bill of Rights Will Diminish the Rights of Everyone in the UK - And the Most Vulnerable Will Suffer Most

11/05/2015 17:33 | Updated 11 May 2016

The government wants to scrap the Human Rights Act.

Yes, you read that right. The Human Rights Act (HRA) - the law that allows ordinary people to hold the State to account for abuse, mistreatment and negligence. The Act that's defended victims of rape and domestic violence and those in care, given bereaved families long-sought answers, safeguarded our soldiers, protected journalists' sources and helped countless individuals gain justice.

David Cameron, Chris Grayling and apparently now Michael Gove feel we'd be better off if we axed an Act that's held the powerful to account over and over again, and instead allowed those with a vested interest in keeping their power unchecked to limit when and to whom human rights apply. Funny that...

If you've been paying attention to party spin recently, you'll have seen our HRA suddenly rechristened "Labour's" Human Rights Act. So it's worth clearing up at the start that it was passed in 1998 with overwhelming cross-party support and Tory leadership endorsement. It was a long-held ambition of the Society of Conservative Lawyers.

Yet now the new justice secretary is promising a "British Bill of Rights and Responsibilities", to "restore common sense to the application of human rights in the UK". And if he can't get Council of Europe agreement that the Bill is a legitimate way of applying the European Convention on Human Rights (which the HRA enshrines into UK law), they say they'll withdraw from Winston Churchill's post war legacy too.

At stake are no less than the hard-won freedoms earlier generations paid for in courage and blood, and which we now hold in trust. It takes "selling the family silver" to a whole new chilling level - but at least we'll be company for military dictatorship Belarus, the only European country not signed up.

So what exactly is the problem with the HRA?

All we've had so far is an eight-page strategy paper published in October and widely panned - by press and politicians (including Tory MPs) alike - as incoherent and legally illiterate. A draft bill, due before Christmas, never materialised.

The case for repeal appears to hinge on the popular deceit that the HRA gives Strasbourg judges the power to order British ones around. "We cannot go on with a situation where crucial decisions about how this country is run and how we protect our citizens are taken by the European Court of Human Rights (ECtHR)," implored then Justice Secretary Chris Grayling in October.

A slight issue with this: it's rubbish. Under the HRA, Britain's courts are only required to "take account" of ECtHR judgments, not follow them. British courts regularly depart from Strasbourg jurisprudence to take account of UK laws, traditions and customs, and the Supreme Court is already the ultimate arbiter of human rights cases here. In fact, when the Human Rights Bill was passing through Parliament, the Conservatives tried to amend it to say British Courts should be bound by Strasbourg - a proposal rejected by Parliament.

The Tories say the Bill will restore "parliamentary sovereignty" - but the HRA has increased British sovereignty. Pre-HRA, UK cases were argued directly in Strasbourg without any judgment from a UK court. Post-HRA, British judges rule on all human rights claims arising in the UK and influence Strasbourg jurisprudence in cases that proceed there. Introducing the Bill will increase Strasbourg's supervision of the UK, making it more like a Court of first instance once again.

Under the Bill, people will still be able to take claims to Strasbourg once domestic litigation is exhausted. Axing our HRA will lead to an increase in cases going there, resulting in more negative rulings against the UK - and decade-long waits for those seeking justice.

It's been claimed that the ECtHR has developed "mission creep", expanding rights protected by the Convention in ways its founders didn't intend. But when the Convention was drafted in 1950, homosexuality was still illegal across much of Europe. Marital rape, corporal punishment and discrimination against illegitimate children were still legal, and developments like the internet, IVF treatment, DNA profiling and the prevalence of human trafficking couldn't have been envisaged. If the Convention were applied according to the technology and attitudes of the 1950s, rights protection would stagnate. Instead, it's rightly interpreted to keep pace with a changing world - but the ECtHR still rules only on fundamental rights.

Following Friday's victory, the Prime Minister apparently wants to "bring our country together" - but repealing the HRA will throw that into flux. This new Bill will not include Scotland (the SNP has confirmed it won't repeal the HRA) and will risk tensions in Northern Ireland - the Good Friday Agreement specifically requires the incorporation of the Convention into law.

The inconvenient thing about human rights is they apply to everyone. Notice the omission of "human" from the Bill's name, and the added "British"? The Tories say their Bill will ensure those who pose a national security risk, or have entered illegally, cannot rely on "questionable human rights claims" to prevent deportation. An easy headline win in some papers, maybe - but where does it fit into Michael Gove's trumpeted British Values to knowingly breach international law and deliver fellow humans, however repugnant, into the hands of torturers? Are we happy to live in a country that disregards the rights of innocent British children, whose interests will no longer be considered when courts consider the deportation of their parents? We can be so obsessed with threats to our lives from outside our community that we forget how easily we undermine them from within.

Perhaps most sinister is the claim the Bill will "limit the use of human rights laws to the most serious cases", with "trivial cases" struck out by courts - a clear statement that the Conservatives want to take away certain rights of the British people. Fancy living in a country where a group of powerful politicians think they're best placed to decide when human rights should or shouldn't apply, or whether your loved one's case is one of the "trivial" ones? Thought not.

At best, the repeal plans are a cynical bid to pander to xenophobia and English nationalism - part of the insipid ongoing campaign that's seen the Conservatives stick "British" in front of everything they possibly can. If they didn't seem so committed to this quixotic battle, it would almost be funny. But it's also poisonous. Everything "un-British" - God forbid, anything that has "European" in front of it - is by extension inferior, even malevolent, to be reviled, feared or attacked.

At worst, they're a knowing attempt by Government ministers to hand itself the right to end the universality of human rights and choose when and to whom they apply. What a despicable message to send to the world - if UK leaders are happy to put limits on human rights, why shouldn't the most tyrannical despots do exactly the same?

It remains to be seen if Michael Gove will attempt to mould Grayling's shambolic plans into something even half-coherent. But might I suggest he save himself a job and stick with the simple and effective (albeit missing the ubiquitous "British") Bill of Rights we already have? It's called the Human Rights Act and you can read it right here.

Peel back the platitudes of "mission creep" and "British sovereignty" and it's this simple: a British Bill of Rights and Responsibilities will diminish the rights of everyone in the UK, and the most vulnerable will suffer most. The public won't stand for it, many in Parliament won't stand for it - and if the Government think this will be a walk in the park, they couldn't be more wrong. It's our Human Rights Act, and we and our members will do everything in our power to save it from repeal.

Bella Sankey is Liberty's director of policy

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