Below we show why the most common accusations against human rights law don’t stand up to scrutiny.
1) "The Human Rights Act and the European Convention on Human Rights have been imposed on us by the EU"
The HRA was independently passed by the UK Parliament in 1998. It incorporates the Convention for the Protection of Human Rights and Fundamental Freedoms. The Convention was adopted by the Council of Europe in 1950 – a body set up after WWII to promote democracy, human rights and the rule of law in Europe. This body is completely separate from the European Union. The UK played a major role in the negotiations and drafting of the Convention which it voluntarily adopted in 1951.
2) "Human rights laws give too much power to unelected judges"
One of the cornerstones of our democratic system is an independent judiciary that interprets and applies the law. Judicial decision-making is fundamental to the rule of law, and the powers given by the HRA to the courts fall squarely within this historic function.
Unlike most Bills of Rights and constitutional documents around the world, the Human Rights Act does not give the courts any power to strike down legislation. Rather, it adopts a compromise – maintaining parliamentary sovereignty and setting up a dialogue model between the courts and Parliament. Under the HRA, if one of the higher courts finds legislation to be incompatible with human rights it can issue a declaration of incompatibility leaving it up to Parliament to decide how best to respond. Basically, in disputes between the legislature and judiciary about laws that are thought to violate human rights, Parliament’s word is final.
3) "Human rights laws will prevent rapists and paedophiles from registering their details on the sex offenders register"
There is nothing in the Human Rights Act or the European Convention of Human Rights that prevents convicted sex offenders from being required to register on the sex offenders register. The right to privacy can be limited if it is necessary and proportionate to protect public safety.
The courts have held that registration on the sex offenders register does not breach human rights law. The European Court of Human Rights has held that the requirement to provide information to the police for inclusion on the sex offenders register is proportionate given the gravity of the harm which may be caused to the victims of sexual offences if an offender were to reoffend.
Our Supreme Court has held that while life-long registration on the register can be justified, there should be a mechanism to provide simply for a review of the requirement to remain on the register long-term. A review would consider an individual’s circumstances and may well lead to a decision to continue to require registration.
4) "The European Court of Human Rights imposes judgments that don’t take into account the culture, traditions and values of the UK"
The European Court of Human Rights (ECtHR) gives a margin of appreciation to member states to allow for political and cultural variations between the 47 different countries that have signed up to the Convention on Human Rights. It will also be applied where the ECtHR considers national authorities are better placed to make assessments of proportionality about rights protection.
The degree of latitude allowed to states will depend on the nature of the human right at issue (for example, religious freedom might attract the principle whereas torture will not). Other factors that the Court will take into account in deciding whether a state’s stance on an issue comes within its margin of appreciation (and so won’t result in a finding of a violation by the Court) include any particular cultural, historical or religious sensitivities and how far that country is out of line with other members of the Council of Europe.
Some commentators have suggested that only a clear and codified ‘British Bill of Rights’ would lead the ECtHR to give the UK the benefit of our home-grown values – that it requires a constitutional document like the German Basic Law before the ECtHR will defer to domestic practice. This is not how the margin of appreciation has been applied by the ECtHR (the margin of appreciation is solely an international doctrine and is not available to UK courts). The adoption of a differently named ‘British Bill of Rights’ or indeed a written constitution would have no added effect in ensuring the ECtHR applied a greater margin of appreciation to the UK.
5) “The European Court of Human Rights has overreached itself.”
The rights contained in the European Convention on Human Rights are intended to be timeless but the way that we understand them (and the content that we give to them) may change with time. The Strasbourg court refers to the Convention as a “living instrument”. This means that it will interpret and apply the Convention in the light of present day circumstances and attitudes.
An example of this approach can be seen in the Court’s approach to the rights of gay men and lesbians. At the time when the Convention was drafted sex between men was still an offence in many countries, including in the UK, and it is very unlikely that the drafters of the Convention ever contemplated that gay people would be able to rely on it to argue that gay sex should be decriminalised or that gay and lesbian relationships should have the same protection as heterosexual ones. But as attitudes towards homosexuality have liberalised the European Court of Human Rights has first recognised that laws that criminalise gay sex violate the right to privacy (protected by Article 8) and more recently that gay and lesbian couples share a family life that also deserves the protection of this Article.
Restricting the interpretation of the Convention to what was in the minds of its drafters would severely limit its value as a human rights instrument.
6) “The UK should just ignore judgments from the European Court of Human Rights which it doesn’t agree with”
Under international law the UK must comply with judgments of the European Court of Human Rights. The purpose of international human rights law is to hold member states to account, which will often mean inconvenience and irritation for the leaders of those states. But this is necessary to make sure that governments’ plans are in line with the human rights standards that they have agreed, and in Britain’s case, helped to draw up. If one member state is allowed to pick and choose which human rights judgments to respect then all members can do the same. If that was the case, many of the most significant advances for liberty, equality and democracy in Europe that have been made since the Second World War would never have happened.
7) "Human rights law does nothing for ordinary people, it’s not relevant if you live in the UK"
Human rights law protects everyone’s human rights; young and old, rich and poor, yours and mine. Anybody’s privacy could be breached by the prying eyes of the state or big corporations, anybody can be wrongly accused of a crime, and anybody could fall foul of careless and insensitive decision-making by public authorities. Hopefully this won’t happen to you but if it did, you might find you need to rely on the Human Rights Act or the European Court of Human Rights to help you.
Currently UK politicians are rushing to condemn the violent repression of protests in the Middle East - Foreign Secretary William Hague said that “the Libyan Government should be in no doubt that it will be held accountable by the international community for its actions.” How can Britain continue to uphold the values of democracy and freedom if we fly in the face of human rights rulings that don't suit us?
8) "People now have a ‘human right’ to anything"
The Human Rights Act, which brings the articles of the European Convention of Human Rights into UK law, doesn’t protect an endless catalogue of rights. Indeed, it only protects 15 well-established fundamental rights and freedoms, like the right to life and free speech. There is a great deal of misinformation about human rights laws, and in fact many of the most controversial cases reported are dismissed by the courts.
9) "Human rights law only protects criminals and terrorists – it does nothing for victims"
Human rights law protect the rights of everyone, and the protection of victims of crime and abuse is at its heart. Many rights can be limited in the interests of public safety, in order to protect national security or to prevent an offence being committed. The Human Rights Act also puts positive obligations on the State to protect victims, requiring the State to take practical steps to protect people whose rights are threatened by others. The Act specifically states that those suspected of or convicted of crimes can be deprived of their liberty.
Human rights law has also given bereaved relatives the right to an independent public investigation into the circumstances surrounding the death of their loved ones, and the right to be involved in the investigation. Liberty acted on behalf of Verna Bryant, whose daughter Naomi was murdered in 2005 by convicted sex offender Anthony Rice. Mrs Bryant sought to find out whether public authority handling of Rice’s release from prison and supervision on licence contributed to her daughter’s death. Following Rice’s admission of murder the Coroner decided not to hold an inquest into Naomi’s death but Mrs Bryant was able to request one using Article 2 of the Human Rights Act, the right to life. The jury found that errors by the prison, parole board, probation services and other agencies directly contributed to Naomi’s death.
In another example of the way that human rights law protects victims of crime, as a result of a case brought in the European Court under Articles 3 and 8 of the ECHR, rape victims are no longer put through the traumatic experience of being cross-examined in person by their alleged assailants.