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Do we need a British Bill of Rights?
I will be addressing the current clamour for a British Bill of Rights (BBR) in the United Kingdom. I will evaluate whether there are serious enough weaknesses in the Human Rights Act 1998 (HRA) to warrant a replacement in the form of a BBR, as is the wish of the Conservative party. The question to keep in mind throughout is whether the HRA has lived up to Lord Irvine’s goal that it should ‘provide as much protection as possible for the rights of individuals against the misuse of power by the state’ (HL Deb, 24th November 1997). It is suggested that it does and, actually, the main problem is a lack of knowledge and respect for the HRA, notably because of the myths and misconceptions that are ignorantly perpetuated.
Inherently, there is little wrong with the content of the HRA. However, the HRA, according to the Lord Chancellor in 2008, is full of ‘myth, misunderstanding and misapplication' (Jack Straw). Many of these myths are in the minds of the public because of the media. It is worth noting that the press are supposed to play a ‘vital public watchdog role’ (Costigan), yet it has often undermined this role itself by propagating falsities about matters regarding the HRA.
There are often reports of the commencement of cases concerning the HRA, but not their final outcomes. A clear example of this is the Dennis Nilsen judicial review application (R. (on the application of Nilsen) v Governor of Whitemoor Prison). Because this case was inaccurately reported - especially by the Daily Mail (See: http://www.dailymail.co.uk/news/article-417637/How-label-goat.html) - many people now wrongly believe that the HRA allows prisoners access to hard-core pornography. The quandary surrounding this case in particular is exacerbated by ‘the Shadow Home Secretary asserting that Dennis Nilsen had been able to obtain hard-core pornography in prison by citing his “right to information and freedom of expression” (Sparrow), under the Act.’ (Dept for Constitutional Affairs). So, even government officials are misrepresenting decisions concerning human rights. How, then, are the public expected to hold the HRA or the wider protection of human rights in Europe in any sort of high regard?
Journalists, including Dorothy Byrne, have even admitted that they have not been informed about the Act to an acceptable standard (Kirby). It is bad reporting, amongst other things, that has lead people, including Jack Straw, to erroneously think of the HRA as a ‘villain's charter’ with no protection for victims (Brogan).
Furthermore, there are various instances of misconceptions leading to operational failures within key government agencies because of lack of sufficient training in human rights issues; one example is the events leading to the murder of Naomi Bryant (Slack).
So, would a British Bill of Rights solve these problems? In October 2007, the Lord Chancellor announced plans for a BBR, depicting the HRA as a ‘first, but substantial step towards a formal statement of rights’ (Secretary of State for Justice and Lord Chancellor). The Conservative party want to abolish the HRA and put in place a UK Bill of Rights.
However, the plans are problematic. Putting aside the predicament the BBR would put us in within the context of EU and the Council of Europe (Donald), it has also been argued that ‘government plans […] appear to be incompatible with creating a new and effective bill of rights' (Amos). For example, ‘[T]he government was vigorously pursuing in Parliament plans for 42 days detention without charge for suspected terrorists’ (although the plan was later dropped) (Amos). This should give the UK public little confidence in the government’s plans for a BBR.
Even if the government published coherent plans for a BBR, such a major change to our constitution should be based on public consensus. However, academic opinion, supported by a Hansard society survey, shows that there is no proof of widespread understanding, let alone support, for the plans for a BBR. This could be changed by education and publicity, but so, of course, could the public’s understanding of the HRA.
It is possible to solve the problems of an under-functioning HRA without the need for a BBR. Indeed, the problem of ignorance would more than likely continue even with the introductions of a BBR (especially if politicians cannot give good reasons why one is needed). The general public need to be educated to make them aware of the rights given to them by the HRA and public authorities should know how best to protect those rights. Also, if the media fully understood how the HRA can be put to good use, then the public would have more of an understanding.
It seems clear that there is room for improvement in the HRA, but we need not go as far as abolishing it. Lord Irvine’s original objective for the HRA should be kept in mind. In relation to this, the protection of individuals would be more effective if everyone was aware of their rights and responsibilities towards each other. Therefore I conclude that there should be an education campaign and perhaps the HRA could be supplemented by some sort of British Bill of Responsibilities, not replaced by a BBR.