There has been talk of doing away with the Human Rights Act (or replacing it with a British Bill of Rights) for many years now, and it sometimes seems like it is fast becoming an inevitability. If you listen to what you are told by the government, the public are in full support of this. Well that may or may not be true, but the real question is, should they be?
The first thing you may ever be led to believe about Human Rights is that they are imposed upon us by the European Union. However, this is completely untrue. The Human Rights Act did not become law in Britain until 1998, when the UK government made it statute. They weren’t forced to. They weren’t legally bound to. They chose to. Furthermore, the basis of the Human Rights Act (the European Convention on Human Rights) was not put in place by the European Union, but by the Council of Europe (a different entity entirely) which Britain is a member of. In fact, it was British judges who co-wrote the convention. Lastly, whilst the European Court of Human Rights in Strasbourg do indeed rule on cases stemming from breaches of the convention in Britain, British courts do not have to accept those rulings in their entirety. The only duty of British courts is to consider European case law and take it into account when making their own rulings. It would be difficult for a British court to do the exact opposite of what European case law would indicate without good reason and explanation, but then, if there is no justification for departing from the case law, why would you want to?
Perhaps more importantly, if you wished to get rid of the Human Rights Act, or to replace it with a British Bill of Rights, then which of the articles do you think are unnecessary and what, if anything, would you replace them with?
The, so called “convention rights” are not all of the articles of the convention, but merely some of them. Over the next few months I’ll cover each and every one of these with an illustration of what society would be like without them. And why wait to start?
The first convention right is Article 2: The right to life, setting out that no one can be killed unless it is in the execution of a lawful sentence or it is absolutely necessary to defend another person from unlawful violence, to make a lawful arrest or prevent an unlawful escape from custody, or to quell a riot or insurrection.
An example of a region where the convention does not apply is Kashmir, where the police are known to murder suspects in extra-judicial killings on a frequent basis. I don’t know about you but I quite like having a law which protects my life.
But article 2 doesn’t just mean that no one should kill you. It actually means that your life should be actively protected. An example of when this has been used in a British court case comes from 2010. A woman who had previously been assessed as being a suicide risk absconded from an open hospital (where she had been detained under the mental health act) and killed herself. Her daughter sued the NHS on the grounds that they were aware that her mother was a suicide risk but failed in their duty under Article 2 of the convention to protect her life by keeping her securely in the hospital. The court agreed and awarded the daughter with £10,000 compensation.
Now you might think that this is too much given that the woman had taken her own life, no one had actually killed her. Or you might think it is too little considering that the daughter actually lost her mother because of the complacency of the NHS and a life is surely worth more than just £10,000. But either way my answer would be the same. No amount of money would ever be enough to account for the death of a person’s mother. But the compensation awarded is given not as a replacement for the victim in a case like this, but to ensure that .the defendant (the NHS) takes the situation seriously so that such a thing is prevented from happening to anyone else in the future.
So if you got rid of Article 2, would you be happy to live in a society where the police simply kill you to save time arresting you, or would you replace the convention with a bill of rights? And if so, would you really leave uut Article 2? I know I wouldn’t.
Next month I’ll cover Article 3: Prohibition of Torture.