Rights and Responsibilities

- Tuesday, 26th September 2000

 

In October for the first time the European Convention of Human Rights will be enshrined in English domestic.

For the first time, we will have such exciting new rights as:

- the right to marry

- the right choose our own residence

- the right to freedom of though

Some of you may even have exercised these rights long before this kind government claimed to give them to us!

At first sight all the new Act appears to do is to codify and reinforce our existing rights, which seems like a Good Thing? Except that when you examine it, it is not possible to have absolute and unqualified rights to anything. Nor when you examine it are absolute rights even possible.

For example, even the ?right to marry? is not absolute. You cannot marry more than one person at a time. You cannot marry someone under 16 years old. You cannot marry without consent ? in this country the spouses? parents? consent won?t suffice!

Nor is the right to free speech absolute and untrammelled. You are not allowed to libel someone. You may not breach a confidentiality agreement. You may not incite racial hatred nor say anything liable to provoke a breach of the peace.

In short different Rights always have to be balanced against each other. If we were to create a Right to Privacy, we would by definition be limiting the Freedom of the Press ? the Right to publish, the Right of Free Speech.

In the past we have recognised that the balance between rights needs to reflect public sentiment, practical circumstances, past experience, the difficulty of enforcement and so on. Deciding the best balance between conflicting rights is a matter not of abstract justice for the courts, but of practical policy.

Precisely because it needs to reflect public sentiment and practical reality, legal rights have always in the last resort been determined in Parliament by elected politicians.

Indeed one of our most cherished Rights in this country has been the right to influence our laws by electing the people who make them or turfing them out.

The Human Rights Act ? far from adding to our rights ? will take away one of the most important rights of all. The British people will lose the right to influence the determination of their rights and to get rid of those who change them in ways we do not like.

Instead unelected judges will be given the power to create new laws and to change the existing balance between our rights. They will do so by interpreting the European Convention of Human Rights. Judges will even be able to declare laws agreed by Parliament to be contrary to Human Rights.

In theory, it would remain possible for Parliament to reject any such finding of incompatibility. But in practice what government will risk being declared by a court of law to be opposing a Human Right? So to all intents and purposes unelected judges will be able to override an elected Parliament in making what are essentially political decisions.

The judges will be making intrinsically political judgements about the balance of rights. So the result is bound to be the politicisation of the judiciary. As in the US, the political leanings of the judicial nominees will become crucially important. It will only be a matter of time before appointments become subject to Parliamentary hearings.

So the net effect of the Human Rights Act will not be to secure our rights. Instead, we will lose our rights to influence law making through Parliament and the right to be tried by a non-political judiciary.

 

 

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