A rundown of the LSE Debate: Should the Human Rights Act be replaced with a new Bill of Rights?

Last night saw LSE host an event on one of the big domestic human rights questions – the Human Rights Act versus a new Bill of Rights. With a panel featuring Professor Conor Gearty, Professor Francesca Klug and Dr Michael Pinto-Duschinsky, it was always going to be an interesting one.

From left to right: Professor Paul Kelly (Chair), Dr Michael Pinto-Duschinsky, Professor Francesca Klug, Professor Conor Gearty

Dr Duschinsky, a Senior Consultant on Constitutional Affairs at the Policy Exchange and former member of the UK Commission on a Bill of Rights, kicked things off. He began by observing that much of the debate around human rights involves different groups of people shouting at each other, which isn’t very helpful for anyone. He went on to say that any discussion surrounding whether a Bill of Rights should replace the Human Rights Act is pointless without first thinking about what such a Bill would contain and how it would work.The main thrust of

Dr Duschinsky’s argument was what he sees as the incompatibility between Britain’s parliamentary democracy where parliament is supreme and having judicial oversight of the decisions made by parliament.

“When an international court is given jurisdiction over national affairs is democracy undermined?” Dr Michael Pinto-Duschinsky.

Referring to current debates on prisoner voting, he said the system is flawed because there seems to be no accepted way to overturn decisions by the European Court of Human Rights even in the most “extreme” circumstances. He said that whilst he supports the rule of law, he thought this may become the ‘rule of lawyers’, which would actually undermine democracy.

Dr Duschinsky said he was most interested in the relationship between an international court and nation states. He believes there should be a separation of powers but also checks and balances as a 47 nation court is completely unique and accountability problems have not been thought through. He highlighted the idea of an “override”, enabling parliaments to disregard the European Court’s rulings, as a last resort which would make an international system of human rights protection much more palatable.

Dr Duschinsky said he would have much more respect for the Human Rights Act if it was detached from Convention and if Parliament could ignore a “declaration of incompatibility”. He believes that Parliament cannot currently exercise the powers it has under the Human Rights Act.

Francesca Klug, Director of the Human Rights Futures Project at LSE, gave a passionate defence of the Human Rights Act. She explained that a new Bill of Rights is not likely to change our relationship with the European Court.

“If we were to replace the Human Rights Act with a Bill of Rights, the UK would still be subject to the European Court of Human Rights’ judgements unless we want to be the only country inside Europe that decides not to.” Francesca Klug

Professor Francesca Klug defends the Human Rights Act

She spoke about how the Human Rights Act is a higher law which is expressed in broad, ethical terms and the UK courts have the power to interpret these expansive values and provide appropriate remedies.

Countering claims that the Act restricts the actions of Government, she argued that it provides the very subsidiary that this Government says it wants; that is the ability of national courts to interpret the European Convention on Human Rights and less intervention by the European Court in national law. She said this would be reversed if the Act was repealed. She also flagged that in 2011 there were only 8 findings of unlawful action by the UK, which is lower than any other similar State.

Professor Klug unpicked some of the other main reasons offered for enacting a new Bill of Rights. First she disagreed that a new Bill of Rights would return power to Parliament. She said parliamentary sovereignty is a misnomer in our system, it really means government sovereignty, which is exactly why the Human Rights Act is needed – to prevent abuses by the State. A second argument for a new Bill of Rights is to free up UK courts from following the European Court However, she argued that the Human Rights Act does not currently restrict UK judges to case law of the European Court; there are a number of cases in which our courts have not followed judgments of the European Court. Finally, there is the argument that a new Bill of Rights offers tot chance to make the rights “British”. Prof Klug questioned what replacing the Act with something labelled British really means? Whilst the government hasn’t explained this, her inkling is that it means some groups would be excluded from protection under this new Bill of Rights. Such a move goes against the grain of Bills of Rights across the world.

Professor Klug concluded by saying that it seems all the reasons given for a Bill of Rights are actually reasons opposing human rights, resulting in a tug of war between the Government and proponents of the Human Rights Act.

Professor Conor Gearty, Professor of Law at LSE, then took to the floor and began by reminding us of the importance of human rights.

“One of the greatest things about human rights is that it has cemented the idea of the universal human” Professor Conor Gearty

Professor Conor Gearty addresses the audience

Addressing points made by both the previous speakers, Professor Gearty noted that removing the European Convention or Court or the Human Rights Act won’t stop “juristocracy” (activist judges), it will only invite it. He argued that the Human Rights Act does in fact preserve parliamentary sovereignty and flagged the examples of UK cases which show this.

Professor Gearty was critical of Government inconsistency on human rights in domestic and foreign policy. He said that whilst UK Government officials travel the world promoting human rights, they are simultaneously trying to strip them away at home. (This chimes a chord with what BIHR has been saying on a number of issues – check back in for future blog posts!)

“In politics if you don’t have a coherent, drilled down argument then it’s just noise.” Professor Conor Gearty

He concluded by saying he believes a new Bill of Rights would be a dangerous thing. It would be a spurious, empty document serving only to disguise the transfer of resources from the very poor to the very rich.

Professor Klug’s closing statement seems to be a good point to end the review of a thoroughly interesting debate:
“Left alone nation states carry out the most horrific violence towards their own citizens; NGOs and ordinary people had to lobby and fight so hard for countries to sign up to the Universal Declaration of Human Rights. Michael and the Government are starting to unpick something that has only been in existence for sixty years. This is really easy to do but I think we would really regret it.”

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