#14664 - Challenges To The Human Rights Act - GDL Constitutional and Administrative Law

_______________________________________________________

Touchy topics

The government (especially under May) is loathed to surrender national powers over the following:

• Immigration

• Ejecting people

• Anti-terrorism

• Surveillance

• Prisoner voting rights

The balancing act that is happening is between liberty and national security – the ‘unhappy’ fact of fundamental freedoms is that everyone is entitled to them, even the most evil man on earth. This seems to baffle a great number of politicians who believe in a more quid pro quo social model – rights in return for allegiance & submission to the laws. Maybe we should return to kissing the ring of the King in exchange for a plot of land eh?

This boils down to a shoot-out between parliamentary sovereignty and the thick rule of law which restrains the government from doing certain things.

However the issue with the thick rule of law, of course, is that it must be administered on a practical level by the courts. It is a justifiable criticism that judges should not be law-makers as this unsettles the separation of powers. It is, of course, also a democratic issue.

The debate centres around a movement away from political constitutionalism (determined by an elected dictatorship executive) -> legal constitutionalism (administered by the judiciary).

2012 Commission on a Bill of Rights

Arguments in favour of a UK Bill of Rights:

1. The Human Rights Act is inadequate.

   1. the Human Rights Act is perceived negatively (regardless of whether this perception is informed/ justified or ill-informed/unjustified);

   2. the current system under the Human Rights Act has resulted in unpopular judicial and related decisions; and

   3. a UK Bill of Rights would be more effective than the Human Rights Act in protecting the rights of individuals.

2. A UK Bill of Rights would be more 'British' and less 'European'.

   1. a UK Bill of Rights would result in greater domestic 'ownership' of rights; rights would be less 'foreign'; and

   2. a UK Bill of Rights could contain rights which better reflect the domestic political and constitutional heritage and British legal culture.

3. A UK Bill of Rights would have an enhanced status and/or symbolic value.

   1. the UK needs a written constitution;

   2. a UK Bill of Rights would have symbolic value;

   3. a UK Bill of Rights would provide greater certainty/clarity about rights than other laws; and

   4. a UK Bill of Rights would bring social benefits (for example, it might have a unifying effect for the United Kingdom as a whole).

4. A UK Bill of Rights would allow for rights to be linked to responsibilities.

5. A UK Bill of Rights would allow additional rights to be adopted, in addition to those set forth in the Human Rights Act.

Arguments against a UK Bill of Rights:

1. The Human Rights Act is adequate.

   1. the Human Rights Act has had a generally positive impact and has worked well;

   2. the level of protection of human rights under the Human Rights Act must be maintained;

   3. the Human Rights Act is in effect a UK Bill of Rights so no change is necessary;

      1. the Human Rights Act’s enforcement mechanisms are balanced and effective and should be protected;

      2. the civil rights and liberties protected by the Human Rights Act are adequate and should remain protected;

      3. the Human Rights Act and devolution legislation deal well with the relationship between the different parts of the United Kingdom, and a new Bill of Rights would unsettle the existing arrangements;

2. Historic rights...