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Constitutional Complacency of HRA Sceptics

Published: 14 July 2015
Those who cite the 'native' British tradition of human rights protection as justification for withdrawing from the European Convention on Human Rights are ignoring history, says Colm O'Cinneide. 
Those seeking to scrap the Human Rights Act 1998 (HRA) often invoke the UK’s long history of constitutional democracy and respect for rule of law as a mainstay of their arguments. In their view, the HRA adds little to the established, tried-and-tested mechanisms through which rights have historically been protected in the UK - namely through the legislative process, backed up by the common law. If anything, they regard the HRA as grafting a foreign body – the ‘living interpretation given to the ECHR by the Court in Strasbourg – onto the healthy and hardy stock of the British constitutional tradition. This view of the HRA and/or the ECHR underpins Tory proposals for replacing the HRA with a new Bill of Rights – which is explicitly packaged as involving a return to a time-honored, authentically British way of protecting rights.
However, paeans of praise to the inherent health of the UK’s indigenous constitutional system need to be treated with a degree of scepticism. The UK constitution has always been a site of political struggle and contestation – and its track record in protecting civil liberties and respecting the political rights of disadvantaged social groups has been, at best, mixed. 
It is true that the UK has a comparatively good human rights record when viewed in long historical perspective. However, since 1945, its legal system has regularly struggled to accommodate the new, more developed concepts of individual liberty, equal treatment and non-discrimination that have emerged in the post-war era.  For example, the common law initially granted little if any protection against race or gender discrimination, or interference with personal privacy, while statutory frameworks regulating police and surveillance powers have repeatedly proven to be inadequate.
Many of these defects have been corrected by legislative intervention, or the development of the common law. However, such developments have often been prompted by judgments of the European Court of Human Rights (or the UK courts under the HRA) establishing that individual rights had been breached.  In other words, the ‘alien’ element represented by the HRA/ECHR has regularly helped to correct deficiencies in the ‘native’ system of rights protection.
Furthermore, complacent affirmations of the wholesomeness of the UK’s human rights record and the integrity of its constitutional system usually turn a blind eye to the conflict in Northern Ireland. It is worth remembering that the eruption of violence in Ulster in 1969, which triggered the thirty years of the ‘Troubles’, was caused in part by a catastrophic failure of constitutional governance – namely the Stormont government’s denial of equal rights to the Catholic/Nationalist minority, which was compounded by the absence of adequate legal and/or political mechanisms through which this discriminatory treatment could be challenged at national level. 
The state also became linked to serious human rights abuses during the course of the Northern Irish conflict, such as the Bloody Sunday killings and the interrogation practices found by the Strasbourg Court to constitute ‘inhuman and degrading treatment’ in Ireland v UK.  As a consequence, the Belfast Agreement expressly provided that respect for the ECHR system of rights protection constituted one of the essential ‘safeguards’ of the peace process,  and that Convention rights should form part of Northern Irish law – enshrining international supervision of the UK’s compliance with fundamental rights, and reflecting the lingering reluctance of the Catholic/Nationalist community to place their trust in ‘native’ forms of constitutional protection.
All of this history – along with other ‘difficult’ issues, such as colonialism - is usually side-lined when opponents of the HRA/ECHR call for a return to the UK’s native approach to protecting individual rights. The manner in which Strasbourg jurisprudence has helped to re-shape and upgrade important aspects of UK law – including libel law, criminal justice, mental health law and the tort liability of public authorities – is left out of picture. Furthermore, the Northern Irish dimension to the debate is regularly overlooked. 
As a result, the lazy assumption that the UK’s native tradition of constitutional democracy has little if anything to benefit from the HRA/ECHR exerts a particularly distorting impact on the debate about the future of UK human rights law. More critical reflection and less complacency is needed – along with a greater willingness to pay attention to the lessons of past history.


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