Bill of Rights

notes on the argument surrounding the bill of rights

  • Created by: Jem
  • Created on: 03-05-13 13:28

Bill of Rights

An alternative to an ineffectual HRA?

  • ·         A Bill of Rights=A document listing and protecting the fundamental freedoms of individuals which is normal entrenched; meaning it cannot be removed or amended by subsequent Parliaments. 
  • ·         42% of people questioned in MORI poll saw HRA as a charter for criminals and the undeserving.
  • ·         Conservatives: want to replace HRA with Bill of Rights
  • ·         UK would still be subject ECHR and in Council of Europe.
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Conservatives 2 ideas

1.      Add to rights within ECHR e.g. trial by jury, right to health care.  This will improve public percept of the law because more people benefit from it.

2.      Removal of fast track S.10 so Parliament has a stronger role in the amendments to incompatible law; all law is changed by Parliamentary debate.

There is also concern surrounding judges; Strasbourg judges are not giving national judges enough leeway to interpret law for the UK’s benefit, and UK judges are overstepping their boundaries.

In order to entrench the law, the Bill of Rights would have to be exempt from Parliament Acts; which would allow the House of Lords the indefinite right to veto amendments to the law.  Alternatively, law could be amended by a special commons majority.

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Problems with the conservatives ideas

1.      Professor Gavin Phillipson: ‘Judges do not like being told how to interpret things because they see that as being their job’

2.      It’s not the HRA’s content people don’t like; it’s the judicial decisions.  Adding to it won’t make a difference, and if No.1 is true, then there is no point in doing anything.

3.      Devolved governments won’t be happy if certain things become rights e.g. healthcare, because it would make them national issues and dilute independence.

4.      Conservatives may not be able to agree on content or scope of Bill of Rights; it may not achieve the desired effect.  Some conservative MPs may not see Bill of Rights as worth their time.

5.      HRA is still new-should be given a chance.

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Arguments From Other People

Pro Bill of Rights: ‘Without an entrenched Bill of Rights there is no liberty in Britain that is safe from the meddling of Politicians’, QC Geoffrey Robertson.

Anti-Bill of Rights

June 2010: Jean-Paul Costa (President of ECtHR at the time): replacing HRA with a Bill of Rights would be a ‘bad idea’-it could jeopardize UK citizen’s human rights protection.  It would also complicate relations between Strasbourg and the UK

The current conservative-liberal democrat coalition government has created problems.  The liberal democrats like the HRA.  A Bill of Rights commission has been created and reported last year.

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Arguments For a Bill of Rights

The Limitations of the Bill of Rights: +

·         Curbs the Executive: A Bill of Rights would protect UK citizens from the government and its agencies.

·         Attitude of the Judiciary: Judges rarely challenge laws that remove a person’s fundamental rights.

·         Updates Human Rights to 21st Century: The ECHR was drafted in 1950; the rights contained within it are important for that time.

·         It Provides the UK with British Rights: ECHR was drafted by European countries, which is possible why some people do not like it.

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Arguments Against a Bill of Rights

·         S.2 HRA: Curbs the executive where judges choose to follow European precedents rather than UK law that removes human rights, which didn’t happen prior to 1998.  Also changes the attitude of the judiciary where judges take into account European precedents and follow human rights precedents where there are no UK ones, even though they are not binding.

·         S.3 HRA: Curbs the executive by allowing judges to fix the law so human rights breaches are removed.  It also changes the attitude of the judiciary because  judges are required to fix the law to comply with human rights, which didn’t happen before 1998.

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Arguments Against a Bill of Rights

·         S.4 HRA: Curbs Executive where judges send back faulty law to be changed by Parliament, executive trying to remove human rights with the law will be unsuccessful.  Changes attitude of judiciary where judges flag laws needed to be made compatible with ECHR; didn’t happen before 1998

·         S.6 HRA: Curbs Executive where agencies of the state can be sued for removing human rights.  Changes attitude of judiciary where judges hear cases against public authorities on human rights breaches

·         S.7 HRA: Curbs executive because human rights cases can be heard in Britain, so more likely executive is going to be challenged and curbed.  Changes attitude of judiciary; judges hear human rights cases-prior 1998, they didn’t.

·         S.19 HRA: Curbs Executive: S.19 forces executive to review new law and declare it is compatible with ECHR

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