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Introduction
Originally, the HRA (Human Rights Act) was introduced in the UK in 1998 as a means of implementing an internal judicial method of addressing human rights concerns (i.e. cases which cross into apparent violations of human rights) as outlined in the European Convention on Human Rights without having to utilize the European Human Rights court to address them (Bowring, 2007). From a domestic policy standpoint, such a move made sense given the far more efficient route of addressing apparent violations of human rights within local courts instead of having to rely on the lengthy process of relying on international human rights courts to make a decision (Bowring, 2007).
However, practicality aside, various studies such as those by Warren (2002) have stated that there is a distinct need to overhaul the current system since it actually prevents the government from doing its job. Evidence of this can be seen in the nearly 70,000 foreign criminals in the UK criminal justice system which should have been deported to their foreign governments however the UK government is prevented from doing so under the human rights act due to the possibility of maltreatment.
Other apparent problems that became apparent only as a result of the revelations from the Edward Snowden case showed that the vagueness found in the HRA could actually allow a systemic violation of human rights based on the defence of what Skilling (2010) deems as superior rights which are often related to the protection of life. What this refers to are violations related to privacy and imprisonment due to the need to protect the population as a whole. While this paper does acknowledge the need for states to protect their respective citizens from internal and external threats, the repression of rights without sufficient justification can be considered as a slippery slope that could result in immoral and unethical actions (Skilling, 2010).
Evidence of this can be seen in the case of the U.S. government and the recent revelations regarding its systematic violations of the privacy of its citizenry through its surveillance program. Taking this into consideration, it is necessary to determine whether the Human Rights Act in its current incarnation is a useful tool in the protection of human rights in the UK. To accomplish such a task, an examination of current relevant issues will be conducted which focus on the positives and negatives of the HRA. It is expected that they by tend of this report, a sufficient conclusion can be reached regarding the continued viability of the HRA as a tool in protecting human rights.
Privacy and Protection of Rights
To better understand how the human rights act is a useful/defunct tool in the protection of human rights, it is important to delve into the article 8 of the HRA and how it applies to the present day political environment of domestic surveillance (as seen within the context of the files released by Edward Snowden) and the rights of the LGBT community. First off, one of the current pressing issues within the international community at the present has been the comprehensive domestic and international spying put in place by the NSA (National Security Agency) of the United States. As indicated by numerous news articles, the surveillance program encompassed not only the observation of foreign governments but also entailed significant domestic surveillance of the citizens within the U.S. resulting in a broad violation of privacy.
Such an act was done under the pretext that the agency was merely trying to prevent instances of terrorism within the country, however, the sheer level of privacy violations and the lack of judicial approval to monitor millions of people without proper legal validation is indicative of a considerable violation of the human right to privacy without probable cause. Within the context of article 8 of the HRA, it can be seen that it does contain provisions towards the protection of privacy both at home and in the work place, yet such provisions also exist within the laws of the U.S. however they were systematically violated by the NSA in favour of national security. Could such a level of violation also occur within the UK under the context of national security? The answer is yes and can be seen within the context of the Prevention of Terrorism Act of 2005 (PTA) which enables the UK government to systematically violate the rights to liberty, freedom of movement, expression, association and privacy of people that are suspected of terrorist activities.
Such activities include, but are not limited to, extensive phone tapping, observation, and various violations of privacy with only probable cause being the justification behind their implementation. While there has yet to be any efforts by the UK government to implement the same level of systematic surveillance and widespread privacy violations as seen in the case of the U.S., the fact remains that when examining the phrasing utilized within article 8 involving the prevention of crime, the deterioration of morals and the protection of rights and freedoms, it can clearly be seen that the phrasing is sufficiently vague so as to necessitate the same widespread surveillance as conducted by the NSA. The inherent problem with the HRA as a tool to protect human rights is that it is far too similar to the European Convention on Human Rights (ECHR) which is described as a living instrument for the protection of human rights. The ECHR was worded in such a way that it was sufficiently broad and vague enough that interpretation of the law could be suited based on the development of societal values at any one time.
Yet, what the creators of the ECHR failed to realize is that societal values do not always conform to an ideal outcome. For instance, after the September 11 attacks in the U.S. along with the various bombings in the UK from outside and internal forces (i.e. Islam based terrorist groups and the radical faction of the IRA), societal values diverged significantly from the time in which the ECHR was first put into effect (Jay, 2000). One example of such a manifestation can be seen in the U.S. wherein through the development of the Patriot Act and the general paranoia of both the U.S. government and its citizenry, the end result was the massive violation of human privacy all in the name of protecting Americas citizens from those that would violate their right to life.
The irony of such a situation is that in protecting their right to life, the U.S. government violated their right to privacy and justified it under the pretext of necessity. A similar situation, albeit not as endemic, can be seen within the UK wherein the Prevention of Terrorism Act of 2005 justifies the stripping of rights based solely on suspicion rather than outright fact. The fact of the matter is that the present day HRA (Human Rights Act) is far too vague when it comes to the protection of privacy in that it stipulates its necessity but does not have sufficient provisions to limit the actions of the government when it comes to protecting what can be describes as the hierarchy of rights (Farrant, 2009).
A hierarchy of rights can be described as a type of pyramid with the most important rights at the top which then subsequently descends into less important rights which make up the succeeding sections of the pyramid (Farrant, 2009). As it can be seen within article 8 of the HRA, the hierarchy of rights is at work wherein the right to privacy is subsequently eschewed in favour of protecting higher rights within the pyramid such as the right to life by protecting the local citizenry. While it is true that some rights are more important than others, the fact remains that there should not be an arbitrary means of violation in place wherein it is immediately assumed that just because one right is more important than the other it can thus be summarily violated in favour of the more important right.
This is the main problem with the HRA wherein the very wording and context of article 8, while protecting privacy, also summarily allows arbitrary violation under a supposedly justified pretext under the hierarchy of rights. This is one of the reasons why politicians such as David Cameron have called for a scrapping of the HRA which is based on the ECHR in favour of developing a more robust Bill of Human Rights that eliminates the arbitrary pretexts that exist within the current HRA (Fox-Decent, 2012). What this means is that as a tool of protecting human rights within the context of privacy, the HRA is far from effective in that it creates the possible justification for the same systematic violation of privacy rights as seen in the U.S. in favour of protecting citizens within the UK through systemic surveillance. The necessary solution in this case, as explained by Cameron, is to scrap the HRA and use it as a basis to create a more absolute and defined set of rights protection that outlines the actions necessary by the government as well as limits it actions when it comes to the hierarchy of rights.
This can be done by ensuring that the wording utilized focuses more on a less vague and more direct method of human rights protection rather than leave it up to the interpretation of judges and government organizations alike. While this section has so far focused on the inadequacies of the HRA, it is also important to delve into the positives that have come about as a result of it. Before proceeding it is important to note that the HRA, while being broad in terms of the various human rights that it sought to protect, is also somewhat vague in its wording leaving much to interpretation based on the situation at hand. Joo-Cheong & Ewing (2007) explain that this vagueness is one of the prime reasons as to why there has been a call to action regarding the removal of the HRA as a whole due to the increasingly cavalier interpretations of the HRA in regard to certain crimes and the protection of the rights of prisoners and insurgents (i.e. terrorist suspects) (Joo-Cheong & Ewing, 2007).
However, some interpretations have created positive results in the form of allowing gay marriage within the UK by the middle of 2014. To understand how the vagueness in some parts of the HRA applies to gay marriage, it is necessary to once again examine the context of the article regarding the respect for private life. While article 8 expressly protects the privacy of individuals, it has also been interpreted to encompass the protection of an individuals right to develop their own personality. This has encompassed to include the basis behind the protection of homosexuals and transsexuals within the UK. The reason this is being mentioned is due to the fact that this was the basis by which present day legislation within the UK was enacted to legalize same sex civil marriages within the UK. While the original ECHR did mention the protection of an individuals sexual orientation to a certain degree, it did not expressly focus on having same sex couples or transsexuals the right to marry.
It was only through an interpretation of the HRA based on the spirit behind the legislation found in article 8 that present day legislation allowed members of the LGBT community to be married. From a certain point of view, it can be stated that the HRA was partly responsible for enabling the passing of such a law since it acted as sufficient precedent which justified the implementation of gay marriage. However, proponents such as Nash (2005) state that the interpretations of the HRA have been far too overreaching as of late with the need for a clearer and far more direct method of implementing proper protection for human rights (Nash, 2005).
Summary
Based on this section, the one theme that has become apparent is that there is a distinct need to change the HRA into something that is far clearer and does not leave the implementation of human rights practices up for interpretation through judges. While it may be true that expounding on the HRA has lead to developments in better human rights practices as evidenced by the development allowing for gay marriage within the UK, the fact remains that its vagueness opens the door to potential human rights violations in the future. The interpretation of article 8 towards the violation of privacy in favour of protecting a citizenry has already been stretched to its limit via the Prevention of Terrorism Act of 2005 (PTA) and as seen within the case of the U.S. has the potential to become a slippery slope that would lead to the creation of a method of surveillance aimed at the citizens of the UK without sufficient probable cause.
It is in the opinion of this paper that while the current HRA is sufficiently broad to encompass various aspects of human rights protection, the fact remains that it is still insufficiently focused so as to work as a proper tool for human rights protection in the long term. This is due to various interpretations of the HRA that have been brought about thus far which have actually created numerous problems in relation to litigation and the expedience of criminal procedures. The only problem with implementing such a change is the fact that in order to switch over to a UK based bill of human rights, the government would need to consider the HRA invalid which, under its ratification of the treaty behind the ECHR, would be considered a violation of its agreement with other states that have similarly ratified and accepted the tenets of Human Rights as outline by the ECHR.
This is one of the current obstacles as to why a UK based Bill of Human Rights is not simply implemented despite government and public acceptance regarding the necessity of implementing one and outright replacing the current HRA. While an examination of the factors of article 8 of the HRA has shown deficiencies in it acting as an effective tool, this is still insufficient as a form of conclusive evidence. What is necessary is to delve into other aspects of the HRA which will be explored in the succeeding sections of this report.
The HRA and Criminal Activity
Another of the problems related to the HRA being a proper tool for the protection of human rights is related to article 3 (rights preventing torture, inhuman or degrading treatment) and article 7 (rights to no punishment without law or sufficient lawful justification). While on the surface these rights are meant to protect the local citizenry of the state from unlawful actions of the government, the fact remains that these laws neglected to take into consideration the growing threat of foreign crime/terrorism and the need to address such a situation through adequate methods of prevention (Gale & James, 2005).
The main issue related to this are the 70,000 foreign criminals in the UK criminal justice system which should have been deported to their foreign governments however the UK government is prevented from doing so under the human rights act due to the possibility of maltreatment. The problem is that such individuals are a definite threat to the national security of the country and have proven themselves to be dangerous individuals and have committed serious crimes. However, under the current HRA, such individuals cite their human rights in order to avoid outright deportation and possible prosecution and death in their home countries (Geddis, 2010).
Given the mandates outline in article 3 and 7 of the HRA, the government cannot knowingly deport such criminals given the very real potential for torture and death. As such, despite the fact such individuals have committed serious crimes within the country and have shown that they are unconcerned about the human rights of others; they are subsequently allowed to remain within the country under the auspices of the protection of human rights. From one perspective it can be stated that the HRA is accomplishing its task in protecting human rights, from another it is apparent that it is an extremely flawed way of accomplishing such a goal. The establishment of human rights law is meant as a means of protecting people from violations of their inherent human rights, however, it was never meant as a means for criminals to escape justice.
Summary
Similar to what was shown in the previous section of this paper involving article 8, this section has shown that the application of the HRA at the present is severely flawed given the vagueness of its tenets and how judgements are summarily applied. What is necessary is a far more concrete and specific method of protecting human rights that does not have the same loopholes present in the HRA. This can only be achieved through the creation of a Bill of Human Rights that is created to specifically address such factors and replace the HRA.
Conclusion
Based on everything that has been presented in this report so far, it can be stated that the HRA at the present is an insufficient tool in protecting human rights at the present and needs to be replaced.
Reference List
Bowring, B 2007, Popular lore, unpopular law, Times Higher Education Supplement, vol. 1795, p. 9.
Farrant, J 2009, Is the Extra-territorial Application of the Human Rights Act Really Justified?, International Criminal Law Review, vol.9, no. 5, pp. 833-854.
Fox-Decent, E 2012, Contextual Constitutionalism after the UK Human Rights Act 1998 , University Of Toronto Law Journal, vol.62, no.1, pp. 133-150.
Gale, C, & James, H 2005, Terrorism, Human Rights and the United Kingdom, Conference Papers Law & Society, vol.1, p. 1.
Geddis, A 2010, Constitutional review under the UK human rights act, New Zealand Universities Law Review, vol.24, no. 2, pp. 302-307.
Jay, R 2000, UK Data Protection Act 1998 the Human Rights Context, International Review Of Law, Computers & Technology, vol.14, no.3, p. 385.
Joo-Cheong, T, & Ewing, K 2007, Limitations of a charter of rights in the age of counter-terrorism, Melbourne University Law Review, vol.31, no.2, pp. 462-498.
Nash, K 2005, Human Rights Culture: Solidarity, Diversity and the Right to be Different, Citizenship Studies, vol.9, no.4, pp. 335-348.
Skilling, G 2010, Prisoners or patients: does the trial of facts process breach human rights?, Journal Of Forensic Psychiatry & Psychology, vol.21, no.6, pp. 902-915.
Warren, A 2002, Right to privacy? The protection of personal data in UK public organisations, New Library World, vol.103, no.11/12, pp. 446-456.
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