Many governments around the world are not enthusiastic about human rights laws. This is because human rights laws mean that there will then be certain things those governments cannot do to the people they govern, at least without breaking those laws.
Yet many governments sign up to international conventions that aim to protect human rights. Some governments even give internal effect to human rights laws and allow their citizens to rely on those laws against the government. Such is the nature of a liberal legal and political order. Governments may be powerful, but they should not be all-powerful.
But governments around the world are always trying to escape or minimise their human rights commitments. For example, the United Kingdom government is currently proposing to reset how human rights law can be relied on by those with access to its courts. Government ministers believe (or say they believe) that human rights have gone “too far” and that the balance between the state and the individual needs to be restruck.
But government ministers would say that, wouldn’t they? Those with political power are always unlikely to want to limit their own power. Ministers and officials will always tend to see courts and lawyers as obstructive – even as “enemies of the people”. This is because courts and lawyers provide the means by which individuals can assert their rights against the powerful.
The UK government cannot do what many of its political and media supporters would like, and quit the European Convention of Human Rights (ECHR). This convention, which has an international court that ensures that the signatories to the convention apply the rights in practice, is a source of domestic political controversy. Indeed, some who supported the UK’s departure from the European Union want the UK to depart from the ECHR as a natural next step.
But the UK cannot take such a step because of another international agreement, the Good Friday Agreement of 1998 which helped bring an end to the “troubles” of Northern Ireland. It is an express provision of the Good Friday Agreement that those in the north of Ireland have direct access to the courts to rely on their rights under the ECHR. This guarantee provides comfort to those who want a united Ireland but are subject to British rule.
The UK government does not want to (be seen to) break the Good Friday Agreement – especially given the ongoing complications in Northern Ireland caused by Brexit.
But government ministers have promised their political and media supporters that the domestic law which gives effect to the ECHR, the Human Rights Act, will be repealed. This has caused a problem. How can government ministers look as if they are taming the effect of human rights law while maintaining the domestic application of the ECHR?
The solution is an exercise in legislative trickery. The Human Rights Act is to be repealed and replaced by a so-called “Bill of Rights”. This Bill of Rights also gives effect to the ECHR. The articles of the convention are to be in a schedule, just as they are with the current Act. The label is changing, but the substantive content is much the same.
The government, however, is adding a number of provisions that will make it harder and more frustrating in practice for individuals to rely on their convention rights before any court. As such, this Bill of Rights seeks to reduce the practical effect of rights, rather than extend or entrench them. There has rarely been a more misleadingly titled piece of legislation.
This new legislation is likely to pass – and the UK government will have its symbolic victory of repealing the Human Rights Act, no doubt to the claps and cheers of its political and media supporters. But the rights set out in the ECHR will still be there and the UK will still be bound by the ECHR under international law and subject to the jurisdiction of the European Court of Human Rights.
Indeed, the role of that international court may become far greater, as those individuals for whom it has become harder and more frustrating to enforce their convention rights will petition the court directly. Looking at the proposal in the round, it is difficult to see any real point to it other than misdirection.
And still, the UK will lecture those abroad about human rights while deliberately making it more difficult for those with access to its courts to rely on their rights under the ECHR. This discrepancy is unfortunate, as countries where there is repression and disregard for human rights do not need much excuse to ignore so-called “international pressure”. The UK may thereby be losing something important by this legislative exercise, and in practice gaining very little.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.