Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?

DOIhttp://doi.org/10.1111/j.1468-2230.2009.00773.x
AuthorMerris Amos
Publication Date01 Nov 2009
THE
MODERN LAW REVIEW
Volume 72 November 2009 No 6
Problems with the Human Rights Act 1998 and How to
RemedyThem: Is a Bill of Rights the Answer?
Merris Amos
n
Recently there has been much discussion of the prospect of replacing, or supplementing, the
Human Rights Act1998 (HRA) with a British bill of rights.The Government, oppositionCo n-
servative Party and others have published detailed plans and research reports. Whilst there has
been some limited examination of the alleged failures of the HRA in providing e¡ective legal
protection forhuman rights, the debate has not been accompanied by athorough examination of
these types of problems with the HRA,free from political criticisms. Drawing on research con-
cerning aspects of the HRA carried out overthe past ten years, it is possible to identify concrete
problems which have prevented the HRA from meeting the objectives originally set for it. But
given the limitations of the present debate, future plans do not adequatelyaddress many of these
problems making it uncertain how e¡ective any new bill of rights will actuallybe.
INTRODUCTION
In its relatively shortlife
1
, the Human Rights Act1998 (HRA)has been the target
of ¢erce criticism stemming from, amongst others, government ministers, oppo-
sition leaders, members of parliament and elements of the media. Until recently,
the thrust of such remarks wasfairly clear. Most centred around thebelief that the
implementation of theHRA was athreat to publicsafety.For example, following
the attack on the World Trade Centre in NewYork, on 11 September 20 01, David
Blunkett, Home Secretary at the time, warned the judiciary to stop applying the
HRA in wayswhich‘thwarted the governments plans.
2
In his opinion,‘[f]reedom
springs not from any abstract legal process, but from political action.
3
Iain
Duncan Smith, then leader of the Conservative Party, pressed for changes to the
HRA to allow the deportation of those who were promotingterrorism claiming
that the HRAwas‘proving an obstacle to protecting the lives of British citizens’.
4
And following the bombings i n London on 7 July 2005, Charles Clarke, Home
Secretary at the time, complained that a consequence of the HRA was that ‘our
n
Department of Law,Quee nMary, University of London.
1 The HRA received the RoyalAssent on 9 November1998a ndcame fully into force on 2 October
2000.
2The Guardian9 October 2001.
3ibid.
4The Guardian11October 20 01.
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Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(6) 883^9 08
most senior judiciary are taking decisions of deep concern to the security of our
society without any responsibility for that security.
5
In morerecent times, government ministers have been less overtlycritical. Jack
Straw, the currentLord Chancellor andMinister for Justice,is now responsiblefor
the HRA. As the Home Secretary who successfully steered the Human Rights
Bill onto the statute book, his criticisms are few although he did complain in an
interview withThe Daily Mail in December 2008 that some judges have been too
nervous about deporting terrorist suspects, and that hewas frustrated by some of
the judgments which have encouraged voters to conclude that the HRA is a‘vil-
lain’s charter’.
6
By contrast, David Cameron, leader of the Opposition Conserva-
tive Party, has since June 2006 promised to repeal the HRA and replace it with a
bill of rights.This position wasoriginally held becausethe HRA has ‘introduceda
culturethat has inhibited lawenforcement andthe supervision of convicted crim-
inals’ and blocked the deportation of terrorist suspects.
7
More recent ly the Con -
servative Party has also voiced its belief that the HRA has failed toprotect against
the erosion of historic liberties and may have even provided a‘veneer of respect-
ability’.
8
But despite the silence, it is still possible to detect some negativity towards the
HRA in government, although it is now much more opaque. In October 2007
the Lord Chancellor, in the consultation paper TheGovernanceofBritain,
announced plans for a British Bill of Rights and Duties describing the HRA as
a ‘¢rst, but substantial step towards a formal statement of rights’.
9
And in March
2009, he published Rights and Responsibilities: Developing our Constitutional Frame-
work
10
, the long awaited consultationpaper on the proposed Bill of Rights. Criti-
cism of the HRA in both documents is thin. There is a concern that rights have
become‘commoditised’ demonstrated by those who assert their rights in a sel¢sh
way without regard to the rights of others.
11
The absence of responsibilities from
the HRA is also a matter for concern. The Government believes that ‘any Bill of
Rights and Responsibilities should seek to articulate what we owe, as much as
what we expect.
12
In its view, ‘[r]esponsibilities and rights are equally necessary
for a healthy democracy.’
13
It is also obviously troubled by a perceived lack of
knowledge and respectfor the HRA. In a speechthe Lord Chancellorhas pointed
out that theHRA has been the subject of ‘myth, misunderstandingand misappli-
cation
14
and implicit in the consultation paper is the suggestion that building
5 P. Wintour and T. Branigan, ‘Clarke blames judges for confusion on rights’The Guardian 4 July
2006,10.
6 B. Brogan,‘Greedy lawyers,terrorists we can’tkick out, and why wemust change this charter for
villains, by Jack Straw’ The DailyMail 8 December 2008, 8.
7 David Cameron, spe ech at the Ce ntre for Policy Studies, 26 June 2006 as reported in W.Wood-
ward,‘Cameronpromises UK bill of rights to replace Human Rights Act’The Guardian 26 June
2006,10.
8 A.Travis,‘Cameron pledges bill to restore British freedoms’ The Guardian 28 February 2009,11.
9The Governance of BritainCm 7170 (2007) at[205].
10 Cm 7577 (2009).
11 ibid at [2.15].
12 ibid at [2.18].
13 ibid.
14 ‘Towards a Bill of Rights and Responsibilities’ 21January 2008.
Problems with the Human Rights Act 1998
884 r2009 The Author.Journal Compilation r20 09 The ModernLaw Review Limited.
(2009) 72(6) 883^908

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