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Rewriting our Rights? Human rights and the UK ConstitutionAn event summary, from the EDF Research Network
On Monday 12 November we were pleased to co-host – with the Equality and Diversity Forum and the British Academy – an open discussion entitled Rewriting our Rights? Human rights and the UK Constitution. Approximately sixty delegates were welcomed by Dr Robin Jackson, Chief Executive of the British Academy, Amanda Ariss, Chief Executive of the Equality and Diversity Forum, and Professor Sandra Fredman, co-chair of the EDF Research Network and Fellow of the British Academy. Between them, they pointed out that human rights have become divisive in the UK, and that we need an impartial, intellectual approach. It was exactly for that reason that the British Academy commissioned the Human rights and the UK Constitution report, formally launched at this event, in part to deflect unhelpful ‘heat’and shine more ‘light’ on this important but often misunderstood and misinterpreted topic.
The event began with an introduction to the report from its author, Colm O’Cinneide, Reader in Law at University College London and a member of the EDF Research Network Steering Group. Colm explained that the report was intended to clarify some of the misunderstandings about, for example, the ‘complex and difficult’ relationship between the European Court of Human Rights and the UK judiciary, perhaps made more difficult because of the unwritten nature of the UK constitution. The report also identified some of the key issues facing those interested in promoting human rights here in the UK. These issues include the widely held perception that the European Convention on Human Rights is ‘not British enough’, and that what is required is a new Bill of Rights. There is also the impact of devolution within the UK to consider, if subsequent legal changes are recommended in the Commission on a Bill of Rights’ deliberations, expected by the end of 2012. The report concludes that, overall, ‘the current state of human rights law in the UK is both compatible with constitutional principles and strikes a decent balance between respecting the British tradition of Parliamentary democracy and protecting individual rights’.[1]
Colm also ‘warned’ the audience that report was not intended to be representative of the academic view; indeed, this would assume there was a single view within the academic community. Any such assumption was dispelled in the lively question and answer discussion which followed, chaired by Professor Fredman. Questions ranged from whether the Human Rights Act was flawed, given its basis on the European Convention on Human Rights; how one could square the principle of ‘inalienable rights’ with the findings of a recent YouGov survey which claimed that rights were ‘bad for Britain’; and whether our jury system made any difference to the apparent dislike of European legislation in the UK.
After initial questions, Professor Fredman invited comments from the panel, which included Colm, joined by Sarah Isal, Deputy Director of Runnymede and Director of the UK Race & Europe Network; Joshua Rosenberg, legal commentator; and Vicki Nash, Head of Policy and Campaigns at Mind and EDF Trustee.
Sarah referred to Runnymede’s 2000 report, The Future of Multi-Ethnic Britain, which suggested that the Human Rights Act needed to ‘go beyond the letter of the law’. She reminded delegates that race is a human rights issue, and that a certain reluctance to engage with human rights has also come – perhaps unexpectedly – from the anti-racist community. This suggests a need to couch arguments for race equality in the language of human rights to encourage a synthesis of thinking.
Joshua spoke about the Commission on a Bill of Rights, and how its members were divided politically. Its remit was in one sense to provide a road map showing how the government could take human rights forward, should they wish to do so. The Commission’s report would not be binding; the government was likely to ‘go and think about it’, but that we were unlikely to see anything more than a paper – green or white – before the next general election in 2015. There appears to be no ready solution to the notion that the European Court of Human Rights has an issue of ‘micro-management’ in UK legislative affairs.
Vicki reminded delegates of the particular issues faced by people with mental health problems. For instance, rights to privacy and liberty are curtailed when people are detained, and this is quite legal. More worryingly, nine out of ten people mentally ill people are subject to discrimination in situations ranging from employment to hate crime. The Human Rights Act currently acts as a safeguard against the more draconian elements of the Mental Health Act(s), and where there appear to be gaps in the Equality Act 2010. The ideal situation is where people benefit from the Human Rights Act’s demands on providers of public services, without having to have recourse to it.
It was then time for the audience to provoke more discussion. Among the many comments and questions posed to the panel were whether the message of fairness had been promoted widely enough by the government of the day when the Human Rights Act was passed. Unlike the three equality commissions in place at the time, promoting race, gender and disability equality, there was no such commission to advance the cause of human rights as a positive force for good, until the formation of the Equality and Human Rights Commission in 2007. Would today’s tabloid attacks on human rights be different if the story had been better told at the time? Would people on the street understand human rights in the UK better if they were described as constitutional rather than European Convention rights? Would having a Bill of Rights make the notion of human rights more palatable? Have we already lost the argument by focusing on human rights law rather than ethics?
Clearly there are no easy answers to any of these issues, and it is easy to see how polarised, conflicting headlines and the ‘highly politicised debate that rages around human rights law in the UK’[2] can obscure the actual issues and confound the general public. However, the point of this evening’s event was to stimulate discussion and encourage delegates to reflect on the report’s contents. Given its academic, non-partisan voice, if it can then help its readers understand the actual issues at stake, enabling them to draw their own independent conclusions, then it will have been a success.
Note by Faith Marchal, EDF Research Network, November 2012
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[1]O’Cinneide, C. (2012), p.48. Human rights and the UK constitution. London: The British Academy
[2] O’Cinneide, p.5.