Civil Law

Repeal of Human Rights Act, 1998

By Ashlesha Suryawanshi

Introduction 

Human rights are inherited from birth. Society is made up of people and they are an important part of this society, their place in society, their respect, their equality all of this ensured by Human Rights. They set standards of how people live with dignity and work in society.  Every Individual deserves equal treatment,   equal power because every individual is an important member of society, so human rights prevent discrimination, also they protect the individual interest. Human rights in a democracy are a charter that gives citizens the civil right to live their lives in peace and equality. We live in a world where every person wants personal rights to live a life with dignity, so in this case, human Rights play a vital role in protecting every citizen’s rights. This right protects individual private life from government encroachment. This right universally applies to all citizens without any discrimination regarding race, caste, sex, place of birth, etc. The basic premise behind the concept of human rights is to create conditions that complement the overall development of the individual in modern society. These rights are required for the consolidation of democracy and as a provision restricting the arbitrary exercise of supremacy. Human rights protect the freedom of the individual as well as independent opinion. It is important to have your own opinion if you want to survive in today’s modern times as well as in running competitions.  And if it is not, then the decline of democracy is certain.

Even though these human rights are innate to human beings, they are violated by human beings themselves, such as slavery, child abuse, unjust custodial death of women, social evils, etc.

Role of Human Rights Act 1998

The Human rights act 1998 was passed by the United Kingdom government and came into force in 2000, which seems to be fundamental rights and freedom that everyone in the UK is allowed to. This law includes Jurisdiction over British Domestic law and rights set in European Convention human rights. This law protects individual rights as well as forces public authorities to treat them equally. This act gives protection to every person including a foreign nation, child, prisoner, UK citizen, etc resident in the UK. 

The human rights act is based on European Convention, it follows the guidelines of the European Convention. The rights protected by this act are, right to life, right to liberty and freedom, right to a fair trial, right against inhuman treatment, right to privacy, Right to no punishment without, Right to respect for private and family life, Right to marry,  Right to free elections, Right to education, etc. This Right also protects any act of public authority if they violate any fundamental right then that person can take legal action and inquire them to regulate the circumstance. So public authority can not interfere in personal life. If public authority makes any new law that is not compatible with a convention right then the court can order to dismiss that law and then parliament can repeal the law.

Repeal of Human Rights act

The issue of the Repeal of Human Rights act initiated because of Brexit.. There are a lot of crises happening to dispose of the Human rights act,1998. After Brexit, Mp’s has raised the possibility of a change in the Human Rights Act. By doing this UK courts can enjoy the legislation that leads to limited interference by the European courts. So the idea of Replacement of the Human Rights Act with, ” British Bill of Rights‘ ‘gives the UK more controlling power over the legislation. By doing so, citizens can, in certain circumstances, directly exercise their right to the convention as well as rely on their public court, so this decision is in the legitimate public interest. The UK is not able to implement laws of its own if it is related to voting rights for prisoners etc. One of the reasons behind the repeal of the Human Rights Act is that the human rights act was written and co-drafted by Britain so its legislation was seemingly more towards the British government and less European. Also, the UK was the first country to Ratify the Convention in 1951) therefore though the human rights act was repealed, UK citizens would still have a way to Human Rights Protection in the new Convention. After the Brexit treaty the new law is British Bill of Rights Introduced by the UK. 

Critics of Human Rights law argue that Human Rights law control the UK’s sovereignty but on the other hand, the government says that if the UK want to repeal the human rights act then the UK have to stay with but if the Council of Europe refused the bill and declare it illegitimate then the UK can leave  European Convention on Human Rights.

There are some legal effects of the repeal of the human right act.  Though the UK can pass new law it has to follow obligations under the European Convention on Human Rights for some rights like rights to a fair trial, right of freedom and expression etc. And therefore the UK would have to be bound to the final judgement of the courts in the case of this article, also UK citizens are not able to use European Convention on human rights in domestic courts and the EU’s charter applies in some matters which falls under the UK jurisdiction, therefore the UK bound it. Also, article 52 of the Charter builds a link between the charter and the European Convention on human rights in that the definition and scope of both the European Convention on human rights and charter are the same. 

According to the UK protocol Lisbon treaty, CJEU( Court of justice of European Union) and Uk courts do not have the power to state that UK legislation is not compatible with the charter. The government had previously said that if the European Union’s accession did not respect the UK’s new system then the UK could unfollow European Convention on human rights.

The second issue of repealing the human rights act is the Northern Irish Good Friday Agreement through the Human Rights act repealed then Northern Irland’s participation in the European Convention On Human Rights replaced by a new bill and new laws obligation apply in Northern Ireland to breach the agreement. Replacing the Human Rights before the new bill makes two legislatures regarding human rights, would oversee asymmetry in the UK human rights.

Another issue of the Sewel Convention set out in article 14 of the memorandum of understanding between Westminster and the devolved legislature according to this, If Westminster wants to legislate any devolved matter then it needs to take consent of the Devolved legislature but the Human rights act is not the devolved legislature. Not taking consent of the devolved legislature can block the repealing of the Human rights act.

Though there are some weaknesses in Human Rights Act, it fails to establish the protection of government information and personal data, it does not provide protection against discrimination and racism, and other cultural rights so the opposition argues that such a bill of human rights was a disaster of human rights protection. Repealing the Human Rights Act is to undermine the UK’s relationship with Europe. The main idea of the repeal of the human rights act is based on false assumptions and there is no special reason for it.

The repeal of the human rights act which is governed by the Conservative Party leads to many disadvantages of replacement of the human rights act. Introducing ‘British Bills of Rights’ the UK has to leave the European Council which eventually affects the unraveling of the UK’s Constitution and other relations. The new bill of rights addresses protection to very limited rights compared to the human rights act. So adding additional changes to the human rights act is better than replacing it with British bills of rights. The new act changes constitutional tradition and also does not maintain parliamentary sovereignty. It is the probable failure of Britain’s credibility, and the replacement of the human rights act affects other surrounding agreements in European Union and other provincial laws.

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