Friday, 22 May 2015

Rights in the UK and elsewhere ...

Updated - additional material 24th May ...

Just how close the UK is to being an elective dictatorship is debatable.  In practice (if not in legal theory), a number of features operate to limit any tendency to such a situation.  One is devolution of powers from Westminster to the Scottish Parliament and to the Assemblies in Wales and Northern Ireland.  Another is the stronger protection of human rights in the UK offered by the Human Rights Act 1998 (HRA).  This is a system of rights protection based on the Council of Europe's European Convention on Human Rights (ECHR).

The ECHR requires that governments protect rights but
it does not specify any particular mechanism by which States must do so.  In the UK, the chosen method has, so far, been the HRA which has  - (1) enabled issues regarding rights to be raised before our own national courts in ways which did not exist before the Act; (2) required government to examine proposed legislation for compatibility with convention rights and (3) placed an obligation on all public authorities to apply convention rights.  It has NOT prevented Parliament from legislating contrary to the ECHR.  Parliamentary Sovereignty remains but Ministers and Parliament must squarely confront what they do and accept any political costs.

In October 2014, the Conservative Party said that in some circumstances it would withdraw from the European Convention on Human Rights (ECHR) but there was no such statement in their manifesto issued before the May 2015 general election.   The HRA will, on the government's plans, be replaced by a British Bill of Rights and Responsibilities.  The exact plans have not yet been released though it has been reported that a 40 page draft exists!   A natural fear is that the government's plans will seek to reduce human rights protection in domestic law and thereby increase the power of the State over the individual.


Many of the other nations in the British Commonwealth seek to protect human rights in some way and the Commonwealth Charter contains a clear commitment to human rights.  These developments indicate that, even in democracies, there is a need for the individual to be protected against what might otherwise be excessive State power.  See how human rights are recognised and protected in Canada, and in New Zealand.

Australia - Victoria:

A further useful example is the   Charter of Human Rights and Responsibilities Act 2006  of the Australian State of Victoria.  The Act provides for a review of the Charter and this is currently underway with the likely outcome that protection will be strengthened (see Premier of Victoria).

The main Purpose of the Charter is to protect and promote human rights by -

        (a)     setting out the human rights that Parliament specifically seeks to protect and promote; and
        (b)     ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and
        (c)     imposing an obligation on all public authorities to act in a way that is compatible with human rights; and
        (d)     requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and
        (e)     conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.
Rights may be limited but only as provided by the Act (section 7) and, in addition, the Charter enables Parliament, in exceptional circumstances, to override the application of the Charter.

The Victorian Charter protects twenty rights but the Charter also states that - A right or freedom not included in the Charter that arises or is recognised under any other law ....  must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

More reading:

The following materials are of considerable interest:

Additional 24th May:

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