Back to basics with testamentary capacity
Michael Gove, the new Justice Secretary under the Conservative government, is being tasked with the abolition of the Human Rights Act 1998 (“HRA”) as contained in his party’s election manifesto and a key part of the new government’s 100-day policy offensive. The Conservative party promised that the HRA would be repealed and replaced with a British Bill of Rights.
The HRA incorporates the European Convention on Human Rights (“ECHR”) into domestic British law. Essentially this means that if someone has a human rights complaint, they can enforce it through the British courts rather than having to go to the European Court of Human Rights in Strasbourg. The HRA also requires all public bodies including the central government, the police and local councils, to abide by the rights enshrined in the ECHR.
The ECHR has a wide range of protections including supporting wrongfully accused individuals, keeping families from being torn apart, preventing the extradition or deportation of individuals to inhuman and degrading treatment and risks of torture and protecting the right to privacy and free speech.
The Conservative Party has stated that they will break the formal link between the British courts and the European Court of Human Rights, and make the UK Supreme Court the ultimate arbiter of human rights matters in the UK.
Despite the apparent simplicity of this plan, looking more closely, it is difficult to understand what the government’s plan is or how they intend to implement it. A draft Bill of Rights was promised last year but has not yet materialised. A policy paper was published but it barely scratched the surface of the legal complexities of the issue. There has been no indication that the government has considered the impact that rejection of the jurisdiction of the European Court of Human Rights would have on the UK’s relationship with the Council of Europe and indeed the European Union. Although the ECHR is governed by the Council of Europe which is completely separate from the EU, ratification of the ECHR is a pre-requisite for membership of the EU.
There are also further complications in respect of devolution and how the withdrawal would be enacted. In particular, there is a strong suggestion that scrapping the HRA would be a breach of the Good Friday agreement in Northern Ireland which would undermine the country’s fragile peace settlement. The Scottish government have also indicated their strong opposition to the repeal of the HRA as the ECHR is incorporated into the Scotland Act.
The ECHR is an acknowledgement by the signatories to it that the rights it protects are both fundamental and universal. The concept of a human right is an appreciation that some rights are so fundamental that they are the very minimum level of protection which an individual can expect, wherever they are in the world. Under the guise of an attempt to “bring rights home”, it is staggering to think that there is a real possibility that these plans may reverse decades of progress. Although labelling the proposed bill “British” suggests that British rights will be somehow different or more superior than other human rights, in fact it appears likely that, with regard to England & Wales at the very least, citizens could enjoy a lower standard of rights than others across the Council of Europe. It also distorts the core aspect of human rights in that they are universal and not just to be enjoyed by certain classes of people.
In light of the lack of clarity over the Government’s proposals, it is difficult to predict what effect the proposals will have on human rights in Britain and the legal system. It is surprising that a Government without cross-party support and a narrow mandate is willing to expend time and political capital in eroding basic human rights and a convention that UK lawyers were fundamental in creating. Although pessimism might be justified (as a columnist for The Times in the late 1990s Mr Gove advocated for the return of the death penalty in Britain) the change of Justice Secretary does provide an opportunity for a new discourse. It is hoped that Mr Gove is brave enough to take the time to carefully review the proposals and listen to the legal community and other interested parties rather than pressing ahead with undue haste with ill-thought out plans to erode the fundamental core of our justice system and democratic society.
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