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Human rights laws should be decided democratically in Britain – the constitution needs rebalancing

The Human Rights Act should be abolished as Britain seeks to regain the ability to decide its own human rights laws within its own democratic public sphere, a new Civitas publication argues.

Civitas editorial director Jim McConalogue warns that the Human Rights Act has had a detrimental impact on the UK constitution, emboldening a judicial supremacy of rights, far removed and insulated from the electorate.

He sets out how:

  • the glaring contradiction between the government withdrawing from an EU legal architecture while seeking to enhance a complementing European Convention rights-based system is currently mismatched and in the future will become unmanageable.
  • The capacity to govern and protect the nation state must, in modern times, operate in the face of serious ambiguity because of the Act.
  • Innumerable court cases continue to permit European Convention rights of often dangerous individuals – including detained terror offenders – to supersede the rights of all others in society in safeguarding their public safety and national security.
  • Over almost 60 years, the UK has received a greater number of Strasbourg court judgements (547) than Albania (79), Denmark (51), Ireland (36), Norway (48), Spain (167), Montenegro (50) and Malta (89) put together.

Given the government’s commitment to set up a Constitution, Democracy & Rights Commission, the book argues that the Commission must necessarily review the commitments to European human rights laws – while recognising that the current system of judicial overreach must be stabilised to return the judiciary to its former independence.

The report emphasises how the reclaiming of ministerial responsibility would mean the fervent passing over of many rights questions to the judges under the Human Rights Act could be brought to an end.

The Conservative government’s commitment to ‘update’ the Human Rights Act provides it with a window of opportunity to finally repeal the Act and withdraw from the jurisdiction of the European Court of Human Rights. Britain would cease to be a signatory to the European Convention on Human Rights and could then rekindle its own legitimate British rights moral code for the twenty-first century.

The deeply ingrained but flawed historical assumptions that the Act would enable parliament to decide on rights issues, in practice enabled only courts to decide – with only one ‘declaration’ resisted by parliament in the entire 22-year history of the Act. In contrast, legislating for rights by parliament would enjoy a greater sense of democratic legitimacy than decisions made by judicial review.

Jim McConalogue added:

‘My book makes clear that reclaiming democracy and deliberation as the foundation for future UK rights has become essential.

‘The opportunity to rebalance the constitution, to take back parliamentary democracy and to reverse the judicial overreach of the Strasbourg court is viable and achievable.

‘To have disregarded entire sections of society from rights questions under the Human Rights Act – by construing rights as a matter ‘not for them’ – is a judgement on which the overlooked majorities have taken great political offence.

‘Our judges view of European Convention case law has been famously interpreted as “Strasbourg has spoken, the case is closed.” Now Britain has indeed spoken, the case is wide open to explore a sensible and workable alternative to deciding rights questions.’

Rebalancing the British Constitution

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