The Comparison Of Bill Of Rights And Human Rights Act 1998

As part of the pledge of 'Taking Rights Home' of the Labour government, the Human Rights Act 1998 was passed. The aim was to make the rights available to domestic and English courts under the European Convention on Human Rights (ECHR) and to save time and resources for people seeking their rights. Although the United Kingdom does not have a set Bill of Rights, many other countries already do; for example, the United States Bill of Rights which guarantees the individual's civil rights and freedoms, such as freedom of expression, of the press, and of religion. This Bill of Rights lays down laws for the due process of law and retains all authority not delegated to individuals or states by the Federal Government. However, following Brexit, the Conservative Government confirmed their intention to replace the HRA 1998 with a new British Bill of Rights but the question is to what extent the protection of human rights in the UK would be affected if Human Rights Act 1998 were abolished?

The HRA has many mechanisms intended to put the ECHR closely aligned with domestic law, but they fall short of entrenchment. This suggests that while the Act offers clear guidelines on the implementation and interpretation of other laws, it can also be repealed by parliament, but this would not happen with a Bill of Rights. This makes the position inherently weak, as seen in the Othman v UK case. The ECHR ruled that under Article 6 they could not lawfully deport Abu Qatada to Jordan, because of the risk of the use of evidence obtained by torture would be used in the trial. This case was seized upon by critics as clear evidence that the HRA was open to abuse. This is one example of how the protection of human rights in the UK would be strengthened if Human Rights Act 1998 were abolished and replaced the introduction of a Bill of Rights.

An advantage of the introduction of a Bill of Rights is that it would put control on the executive. The Bill of Rights offers a check on the huge powers of the executive (government agencies like the police) and so courts could refuse legislation that was incompatible with the Bill of Rights

One of the HRA's criticisms is that it has an irreversible effect on our legal system and contradicts parliament's sovereignty by granting judges the power to make a declaration of incompatibility that they did not previously have. According to section 3 of the HRA, judges shall interpret all laws consistent with human rights, but only to the degree that this can be possible. This means that an Act that breaches the Convention can still prevail. This would not be a case with a Bill of Rights, and so we could argue that the protection of human rights in the UK would be strengthened if Human Rights Act 1998 were abolished and replaced the introduction of a Bill of Rights.

There is a lack of a written constitution setting out rights in the Uk. People have fundamental rights, the infringement of which should be illegal. Based on the principle ‘do as you would be done by’- these rights need to be enriched in a legal document and so the introduction of a Bill of Rights would strengthen this. Another factor would be that the hra 1998 is based on the ECRA, which is 60 years old, meaning that it does not provide for social, economic, or political rights. Because of this we could argue that the HRA is arguably out of date, and inadequate to reflect the needs of the UK. An introduction of a Bill of Rights would lead to a system where changes are agreed upon by parliament and constituted specialists in conjunction would enable ossified and out of date rights to be eliminated. Such as rights to own slaves was in the USA Bill. As the HRA did not bring in any new rights, a Bill of Rights would introduce new rights which would in fact strengthen the protection of human rights and civil liberties within the UK which may be particular to Britain. This suggests abolishing the HRA 1998 and replacing it with a Bill of Rights which would be more beneficial.

However, there would also be disadvantages to the protection of human rights and civil liberties if the UK were to abolish the HRA 1998 and replace it with a Bill of Rights. For example, an introduction of a Bill of Rights would give increased power to the Judiciary. Although the HRA gives more power to the judiciary, which in turn supports the idea of separation of powers however, this would curb the executive of S.3 of the HRA by allowing judges to fix the law so human rights breaches are removed, yet S.19 forces executive to review new law and declare it is compatible with ECHR but the introduction of a bill of rights would mean this would not take place. This in effect would take away from S.7 of the HRA as increased powers to the judiciary curbs executive where agencies of the state can be sued for removing human rights. Therefore, abolishing the HRA 1998 and replacing it with a Bill of Rights could weaken the protection of human rights and civil liberties within the UK.

Another disadvantage of an introduction of a Bill of Right would be that they are inflexible, meaning they are hard to change. A bill may enshrine bad principles or those that will change in the future, which binds them; containing moral growth. For example, the US right to bear arms which could lead to unexpected consequences of higher gun crime. This shows how these types of rights are difficult to reverse, and so in this case, abolishing the HRA 1998 and replacing it with a Bill of Rights could weaken the protection of human rights and civil liberties within the UK.

Finally, another reason why an introduction of a Bill of Rights would be a disadvantage is that it is virtually the same as the ECHR, and so you could argue that there is no point in drafting a new set of rights. This suggests that a British Bill of Rights would not be needed and may also be a difficult draft as what would be included to strengthen the protection of human rights and civil liberties due to our current right already adequately protected. Therefore we could argue that abolishing the HRA 1998 and replacing it with a Bill of Rights is unnecessary in this situation.

In conclusion, we could say that abolishing the HRA 1998 and replacing it with a British Bill of Rights may be a positive outcome, however many countries do without a Bill of Rights; for example, ‘Problem of freedom of speech’ resolved in campbell. This suggests that although having a new set of rights is not necessary, the introduction of one will strengthen the protection of human rights and civil liberties in the areas which the HRA 1988 does not cover.