J. Alan Smith looks at the nature of human rights legislation

There is a widespread belief that, before the passing of the Human Rights Act, there were no human rights in Britain. This is not true and is, in fact, the reverse of the truth. The Human Rights Act and the facility to appeal to the European Court of Human Rights has made it less certain what the law on any particular subject actually is, and this uncertainty itself tends to diminish human rights.

Before the Act

Law in Britain started as the unwritten common law, rooted in natural law, which was developed as required by statute law passed by Parliament. In any particular case in which it was thought that the law had been broken, the issue was decided by a court presided over by a judge. If common and statute law were not clear on a point, a judge could make a decision on what appeared to be reasonable, thereby establishing case law. However, Parliament had the power to clarify the law for future cases if it were thought that such a decision was wrong. At the same time, the justice of current law was subject to comments by the established churches in England and Scotland and other bodies and individuals which could lead to changes in the law.

Higher status

During the Second World War and afterwards, most of continental Europe had been subjected to totalitarian regimes. It was therefore a good idea to produce the Declaration of Human Rights to establish a standard for governments. However, it was wrong to give this Declaration the status of a higher law that took precedence over the common law, statute law, and case law of the countries that accepted it. Where there is a conflict between the law of a state and the Declaration of Human Rights as interpreted by the European Court of Human Rights, it is the view of the latter, comprised of appointed judges, that prevails. In my opinion it is the role of judges to interpret the law, not to change it.

Straining credulity

On a regular basis over the past few years there has been a stream of cases being referred to the European Court of Human Rights that put a strain on one’s credulity. Let us take one example: the fact that prisoners are unable to vote in elections. A case could be argued for certain prisoners to be given the right to vote but it is not clear that their human rights are being incringed. Moreover, the whole issue appears to be bogus. I have been interested in politics since the age of eleven or so, and could justifiably be described as a politics nerd but, if I were sent to prison, I do not think that my inability to cast a vote in elections would be high on my list of concerns.

There is a simple test that can be applied to such human rights cases that are referred to the Court: is this what those who frame the Declaration of Human Rights had in mind? However, the acid test of the human rights approach to legislation is provided by the question of abortion. There is an inherent contradiction between the right to life of an unborn human and the claimed right of a pregnant woman to have an abortion. In practice, the Court would probably be influenced by the dominant school of thought, which currently is that of the liberal establishment.

A major difference

Abortion is legal in a wide range of cases both in Great Britain and in the United States of America. However, there is a major difference in the way it was legalized in the two countries. In Great Britain it was made legal by the Abortion Act 1967, and subsequent Acts, that defined a number of exclusions from the general prohibition against abortion. While this was wrong, it is open to future Parliaments to change the law. In the USA, abortion was made legal, not by Congress but by the Supreme Court. Even if the people of the USA wished to make abortion illegal and elected a President, a Senate and a House of Representatives who were in sympathy with their view, it is not easy to see how their view could be put into effect. It is better to enable a Parliament to pass an unjust law such as the Abortion Act 1967, as long as a subsequent Parliament could repeal it, than to have judge-made laws that cannot be changed by Parliament.

David Cameron has suggested that appeals to the European Court of Human Rights could be replaced by a British Bill of Rights but this misses the point. The problem is not the foreignness of the Court but of having laws that cannot be changed. Human Rights legislation can so easily lead to human wrongs. ND