Tuesday, June 06, 2006

The Human Rights Act

Token Bird has some thoughts up on the HRA, based on a talk from Shami Chakrabarti. Chakrabarti's point was that the HRA represents the last bulwark of liberty against an increasingly absolutist executive and that as such it should be protected. I have a few thoughts on this, and on the wider points that the HRA throws up.

The first point is that, as a piece of legislation, the HRA has, in the opinion of almost all lawyers, no greater status than any other statute. Accordingly, if a subsequent Act contradicts the HRA, the new Act will over-rule the HRA. In other words, the only power that the HRA has is that of publicity. It cannot overpower Acts of Parliament, it can only embarass the Government. This is precisely what the ECHR used to do before the HRA was enacted. As it stands, as Token points out, the HRA is less than useless as a 'bulwark against authoritarian politics' as Ms Chakrabarti has it.

But if this is the case, should it be strengthened? If the HRA is to be a bulwark for liberty and freedom, it must be strictly enforceable. At present, if Judges state that a policy is in conflict with the HRA there is no obligation on the Government to do anything at all in mitigation. If the HRA were to be effective, there must be the ability for it to override new statutes in conflict. The decision as to whether the policy or Act was in conflict with the HRA would have to be left to the Judiciary. And the Judiciary would thus be able to over-rule actions of the Executive and declare them against the HRA.

The problem is that all this is a radical change to Britain's constitution. The principles of implied repeal, of Parliamentary sovereignty and, perhaps most importantly, of a non-political Judiciary are all swept aside in order to secure the status of the Human Rights Act. This would be the largest re-shaping of the British political landscape since 1688. And on what mandate? I am extremely chary of radical political revolution, peaceful or not.

It may not be entirely satisfactory, but we do have a system of checks and balances in place. It's called the Houses of Parliament, as well as the independent judiciary. If Chakrabarti's re-jigged constitution were to be in force, there would be an end to a non-political judiciary. If judges have a central political role, as they do in America, it makes no sense for them to be un-accountable themselves. They would have to be elected for the plan to make any sense at all. And that would be another radical alteration to the British constitution.

I believe that Shami Chakrabarti's heart is in the right place, but her solution to an authoritarian Government is to destroy and reconstruct the entire British Governmental system and introduce a judiciary that outranks the elected House. Sledgehammer - nut.

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