Essay: David Cameron on Abolishing the Human Rights Act

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David Cameron

Guiding Legislation: Human Rights Act or British Bill of Rights

When British Prime Minister David Cameron originally called for the 'scrapping' of the Human Rights Act, it was in response to a landmark decision that purported to have allowed a murderer to escape deportation. In his now famous speech in 2007, Cameron accused the Government of not being willing to face the Act's failings in regard to accused killer Learco Chindamo, not being regarded as a threat to the public, and being allowed to remain in Britain subsequent to his parole hearing if released.

This was not the first criticism of the Human Rights Act of 1998, adopted by the government in 2000. There have reportedly been a number of high profile cases of deportation that have brought a great deal of scrutiny to the government. Many have argued in favor of a new Bill of Rights that clearly articulates rights and responsibilities that have been suggested would address some of the gaps and loopholes in the current legislation. At present, the country continues to operate under the Bill of Rights enacted in the 1600's. Cameron, amidst others, has suggested a new Bill of Rights should be established and the Human Rights Act abandoned.

Human Rights Act

The Human Rights Act (HRA) of 1998 is designed as a declaration that allows citizens to assert their individual rights under the European Convention of Human Rights (ECHR) before the United Kingdom courts (Fergai, 2010). HRA is an Act of Parliament that was fully adopted by the government in 2000 with the aim to "give further effect" in UK law to the rights previously articulated in the ECHR. More specifically, the Human Rights Act makes it unlawful for any public entity to act in such a manner that is considered incompatible with the Convention, unless the wording of an Act of Parliament leaves them without choice. Moreover, it is impossible to interpret an Act of parliament in such a manner that would make it compatible with the Convention, and the judiciary has not ability to override the decision. In such a situation, judges do have the ability to issue a declaration of incompatibility which in no way affects the validity of the Act of Parliament, serving to maintain the principle of Parliamentary sovereignty (Phillipson, 2007).

The genius of the declaration of incompatibility lies in the way in which it deliberately undermines its own authority, inviting the political back in to control the legal at just the moment when the supremacy of the legal discourse seems assured (Gearty, 2006, p. 95).

The original convention was orchestrated by the Council of Europe subsequent to World War II under the chairmanship of Sir David Maxwell-Fyfe of the Committee on Legal and Administrative Questions of the Council's Consultative Assembly in the late 1940's early 1950's. However, it was not until the 1960's were citizen of Britain able to bring claims in the European Court of Human Rights. Because of dissatisfaction with the system as it stood, with many speculating and asserting that executive power was being misused, there were a number of movements citing the need for legislative reform. What resulted was the Labour government's incorporation of the European Convention on Human Rights into law by way of the Human Rights Act of 1998 (Phillipson, 2003).

According to the Human Rights Act, there is a duty on all tribunals and courts in the United Kingdom to interpret legislation in such a manner that is compatible with those articulated according to the European Convention on Human Rights (Section 3(1)). There has been and continues to be much scholarly and political debate as to the limits allowed to the judiciary as the courts are unable to interpret any Acts of Parliament in a way that would subterfuge clear meaning (Gearty, 2006).

For many, the structure of the Human Rights Act is a retreat from the 'supremacy of the legal discourse' in respect to the theory of parliamentary sovereignty (Dicey, 1959), and is set forth in such a manner as to avoid 'the judicialisation of politics; and the politicisation of law' (Phillipson, 2007). Regardless of parliament's efforts to limit the courts role to 'courteous requests for conversation without pronouncements of truth from on high' (Gearty, 2006, p. 96), some argue there has been a discernible process of juridificaiton, or the proliferation of law, specifically notable in the area of counter terrorism which was one of the contestations made by Cameron in 2007.

Many argue that with the current process, there is the ability of misleading parliament and the citizens of Britain with the effect that 'executive discretion' is not sufficiently policed and monitored (Fergai, 2010). Gordon Silverstein in his book "Law's Allure: How Law Shapes, Constrains, Save and Kills Politics" (2009) posits two primary reasons for juridificaiton: (1) it is preferable to those involved; (2) it is the only available option. Silverstein purport that juridificaiton is considered the only option wherein political or institutional barriers to policy reform are present, positing an alternative of a judicial option if the courts are viewed as having greater effectiveness and as having 'normative moral superiority'(Silverstein, 2009, pp. 23-25).

There are specific arguments posited for juridificaiton as it relates to the issue of counter-terrorism and the current structure of the Human Rights Act, as there is allowance for the executive to avoid being blamed. Ignatieff in his 2005 book, "The Lesser Evil: Political Ethics in an Age of Terror" maintains,

The political costs of under-reaction are always going to be higher than the costs of overreaction…since no one can know

in advance what strategy is best calibrated to deter an attack,

the political leader who hits hard -- with security roundups and prevention detentions -- is making a safer bet, in relation to his own political future than one who adopts the precautionary strategy of "first do no harm" (Ignatieff, 2005, p. 58).

After decades of implacable opposition both the Conservative and Labour government have articulated support for a Bill of rights and Responsibilities for the citizens of Britain.

However, surprisingly, many indicate it is the Liberal Democrats, long time supporters of a bill of rights, who have expressed the staunchest reservations regarding the manner in which the present debate regarding the Human Rights Act and the Bill of Rights is contextually framed. This is said to be due in part to the fact that the Human Rights Act which served to incorporate HRA and ECHR into United Kingdom law less than 10 years ago, was then widely regarded and considered as a bill of rights (Klug, 2009). Subsequent to World War II, the political parties in the UK adopted the view that it should not be made a part of domestic like, unlike the rest of Europe. However, the consequence of this ratification was that subsequent governments, not the courts or public authorities became subjects to the role of the European Court of Human Rights in Strasbourg.

It has been argued that the Human Rights Act was intended to be more than a simple "incorporation of a human rights treaty into domestic law" (Klug, 2009, p. 420). Like any Bill of Rights, it is purported the crafting of the Act was deliberately done so as a 'higher law' to which all other policy and law must conform when plausible and possible. Judges are purported to be empowered to hold the executive to review and account Acts of Parliament in such a way without precedent in constitutional history; however, stopping short of the allowance of unelected courts from striking down Parliament's Acts (Cameron, 2006).

British Bill of Rights

A Bill of Rights in an instrument of the government that provides formal legal status to a broad range of basic or fundamental human rights, according to the definition offered by Tant (1993). Although to some degree Bill of Rights share a common contextual framework, all vary significantly in terms of their designed content and strength. The debate regarding a British Bill of Rights has encompassed the notion of giving legal status to the rights articulated by the European Convention on Human Rights as outlined in the Human Rights Act, and more ambitiously suggests the framing of an indigenous rights instrument for Britain (Erdos, 2009).

Currently, Britain continues to operate under the Bill of Rights established in 1688 as an Act of the Parliament of England. According to historians, the Bill of Rights was a restatement in "statutory form' of the Declaration of Right originally presented by the Convention Parliament to William and Mary inviting joint sovereigns of England (Toporoski, 1996). The Bill of Rights along with the Act of Settlement from the 1700's is still operation and is considered one o the primary constitutional laws governing succession the throne of the UK and follows British colonialism, independence and the doctrine of reception.

The Bill of Rights articulated specific basic rights including (1) no unilateral royal interference with the law; (2) no taxation by royal prerogative; (3) freedom to petition the monarchy without fear… [END OF PREVIEW]

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