The Human Rights Act 1988 – Should it be scrapped or replaced?


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The Independent reported recently that Home Secretary Theresa May wants the Human Rights Act scrapped in the UK.  Her reason – it has created problems for the Home Office over ‘deporting terror suspects and foreign criminals who are in the UK…’ – which I think personally is a fair statement of a very serious problem.  Other government members are saying things such as ‘It’s here to stay’ ‘it would be good to replace the Human Rights Act with a Bill of Rights’ and ‘scrapping it is a lazy and incoherent position to hold’.

But, what would be the best thing to do?

Simply scrapping it with no other mechanism for people to have their rights and freedoms protected is not a good move, clearly.

Is an Americanized ‘Bill of Rights’ a fitting replacement?

What benefits does the Human Rights Act give us in the first place? And is it out of date?

Here are the ‘rights’ we have as stated in the Human Rights Act 1988

The Articles: (click here for the detailed Articles)

  • The right to life.
  • The right not to be tortured, also not to be treated or punished in a degrading or inhuman way.    The right not to have to do forced labour or be a slave.
  • The right to liberty and security of person.
  • The right to a fair trial.
  • The right to freedom from retrospective penalties or laws.
  • The right to respect for private and family life, home and correspondence.
  • The right to freedom of thought, conscience and religion.
  • The right to freedom of expression.
  • The right to freedom of assembly and association.
  • The right to marry and have a family.
  • The prohibition of discrimination.
  • The prohibition of abuse of rights.

Articles 16 & 18 apply the following restrictions/limitations –

  • Restrictions on Political Activity of Aliens
  • Limitation on the use of restrictions on rights.

Protocols:

  • The right to peaceful enjoyment of possessions.
  • The right to education.
  • The right to free elections at regular intervals.
  • The abolition of the death penalty.

If The Human Rights Act does not cover a right it may be covered by another Act, not all of the rights in the European Convention are included in The Human Rights Act because they are already covered in other laws. Other rights are protected under laws such as The Equal Pay Act, The Sex Discrimination Act, The Race Relations Act, The Disability Discrimination Act, and The Protection from Harassment Act.

The Human Rights Act only places a duty on public bodies to uphold these rights, not on individuals or private companies.

Everyone has rights and responsibilities under the act. There are some situations in which people’s rights can conflict and some situations where the rights of individuals can conflict with the responsibilities of the organisation or company. For example – The National Health Service has the responsibility of treating everyone who is ill, to stop death occurring if possible. An individual has the right to life. If two people needed a machine to live and there was only one machine, a difficult choice would have to be made. There would be tension between the rights of the two individuals and the responsibility of the NHS.

Imagine you worked in a factory where Person A was continually making racist remarks about another employee who was from a different ethnic background (Person B) and Person B had asked you to speak to Person A about it. You did this and Person A told you it was their right to freedom of expression they were exercising – This would be a situation of conflicting rights – Person A is exercising their right without regard and respect for Person B, but in exercising their right to freedom of expression they are breaking the law. They and/or their employer could be taken to court under the Race Relations Act.

This is why some rights are qualified rights, such as the right to freedom of expression. 

In the Human Rights Act some of the rights are qualified rights.

  • • The right to respect for private and family life
  • • The right to freedom and of thought, conscience and religion
  • • The right to freedom of expression
  • • The right to freedom of association and assembly

This means that they can be broken in some circumstances, by the government or a public authority but they must have a very good reason for doing it, for example protecting someone’s life.

Currently the Human Rights Act does not allow an individual to bring a case against an employer who is not a public authority. However, this may change in the future as the law is interpreted and changed in accordance with the European Convention on Human Rights.

But there are also certain things that we do not have a right to, that maybe we should…?

The act gives priority to civil and political rights at the expense of economic and social rights, thus some of the most basic ‘rights’ appear to be missing in the act

  • The right to food
  • The right to clean fresh water
  • The right to shelter/a home
  • The right to health (although we have the NHS the lack of a ‘right’ to health shows why the NHS is failing so many)
  • The right to work/employment (hence, high unemployment rates and reliance on state benefits)

For example Article 8 The right to respect for private and family life, home and correspondence confers that

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”  (source – Human Rights Act 1988)

But the word ‘home’ within this article is almost redundant as it does not give you the right to have a home – is it any wonder we still have such serious homelessness problems in the UK? If we had a right to a home the government would have to provide accommodation for all the homeless people – that would be a major problem for them to achieve!

So what does this mean for the future of the Human Rights Act?

Personally I think that there is clearly a need to remove loopholes that protect foreign criminals and terrorists who happen to be in our country, and also to ensure that some of the more basic rights are catered for. So, some kind of amendment or update would be a good move, but scrapping? No, we need ‘something’ to protect our rights!

What do you think?

Are there any other ‘rights’ you feel the Act fails to cater for?

Thank you for reading!  If you have enjoyed reading this post please share it with others who may be interested and I always enjoy receiving feedback and comments 🙂

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6 comments on “The Human Rights Act 1988 – Should it be scrapped or replaced?

  1. We were talking about this in politics last week, we were also talking about the monarchy and how come it is that men can leapfrog their female siblings to the throne haha, everything seems to be popping up everywhere haha. I’d kind of prefer a Bill of Rights because then we can deal with our own problems without someone going to a European court if their conviction conflicts with the Human Rights Act. Of course I do hope it’s a decent alternative, I don’t know that much about it!

    • Indeed, it does appear that the Act is no longer ‘fit for purpose’ and something more appropriate is needed, but with how slow the wheels turn it will be a long time before we see anything beneficial result from any planned change anyway! :/

  2. The problem here is that the Human Rights Act isn’t about actual human rights it’s about continually changing social rights, which are determined by the economy and public opinion. Basic human rights shouldn’t be governed by a national law they should be a UN agreed standard. Sorry China! Like all laws, there will always be dissenters, loopholes, and interpretations. Why waste money scrapping or altering that is still basically a functional ethical system?

    • very true Ed! I guess the issue is that if they are considering scrapping or altering it anyway should they not at least be trying to develop something that is fit for the intended purpose?

  3. Sharon-
    I think the fact that your Home Secretary recognizes there is a problem in (overzealous) efforts to deal with terror is exactly WHY the Act must remain.
    The second we make laws that afford government the right to abrogate our civil rights is the second that we no longer have any rights. Because once they change one or two to meet the “exigencies” they concoct, what’s to stop the next encroachment?
    No, we must stand vigilant. Protect our rights. And, prosecute criminals and police activities according to the norms we expect (and demand).
    That does not mean that a terrorist with a bomb must be captured without a scratch. If the choice is to defuse the situation or to terminate the life of the terrorist, then that is not in contravention to the Human Rights Act.
    This is the method politicians always want- to present a simple solution that does not answer the problem.

    • Hi Roy,
      Thanks for your comment, the problem with the UK Act is that it provides loopholes in certain areas and prevents the government protecting our society in others, basically as it currently stands it is no longer ‘fit for purpose’.
      We do need an Act that protects our rights (including those currently ignored in the Act as it stands) but does not allow others free reign to abuse our Act to protect themselves from the actions of their home nations – if they choose to come here as terrorists they should not then be able to use our Act to be protected from the ‘threat of human rights breaches’ in their home country i.e through avoiding deportation

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