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PROTECTING HUMAN RIGHTS IN THE UK

THE CONSERVATIVES’ PROPOSALS FOR
CHANGING BRITAIN’S HUMAN RIGHTS LAWS

 PROTECTING HUMAN RIGHTS IN THE UK

HUMAN RIGHTS IN CONTEXT
Britain has a long history of protecting human rights at home and standing up for those values
abroad. From Magna Carta in 1215, to the Bill of Rights and the Claim of Right in 1689, and over
the centuries through our Common Law tradition, the UK’s protection of human rights has always
been grounded in real circumstance, rather than simply being a matter of abstract principle.
The European Convention on Human Rights (ECHR) was signed in Rome in 1950, as part of the
post-war efforts by the Allies to ensure that the horrors of the 1940s could never be repeated. It
was agreed in the shadow of Nazism, at a time when Stalin was still in power in the Soviet Union
and when people were still being sent to the gulags without trial.
It sets out certain absolute rights, which include the right not to be tortured, the right not to be
enslaved and the right to a fair trial. The Convention also contains rights which can only be limited
in the restricted circumstances it sets out, such as the right to life and the right to liberty. The
substance of these rights lies at the very heart of the Convention’s text.
In addition, the Convention contains a third category of ‘qualified’ rights, which can be restricted
in a range of scenarios. For example, Article 8, the right to respect for private and family life, is
qualified with the following: “There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals, or for the protection of
the rights and freedoms of others.”
The Convention is an entirely sensible statement of the principles which should underpin any
modern democratic nation. Indeed, the UK had a great influence on the drafting of the
Convention, and was the first nation to ratify it.
In today’s uncertain world, our commitment to fundamental human rights is as important as ever.
That is why we must put Britain first, taking action to reform the human rights laws in the UK, so
they are credible, just and command public support. We are today outlining our key objectives to
do just that, and we will shortly publish a draft British Bill of Rights and Responsibilities for
consultation, so we deliver a coherent and comprehensive human rights regime in Britain.

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 PROTECTING HUMAN RIGHTS IN THE UK

THE CASE FOR CHANGE
Over the past 20 years, there have been significant developments which have undermined public
confidence in the human rights framework in the UK, and which make change necessary today.
The European Court of Human Rights (ECtHR) in Strasbourg has long been established as a
means of enforcing the Convention’s terms. It was not until 1998, however, that the binding
jurisdiction of the Court, and the right of individuals to take a case to Strasbourg, became
necessary for countries signed up to the Convention. These developments happened at the same
time as the Labour Government in the UK brought forward the Human Rights Act (HRA). Both the
recent practice of the Court and the domestic legislation passed by Labour has damaged the
credibility of human rights at home.
ï‚·
The European Court of Human Rights has developed ‘mission creep’. Strasbourg adopts
a principle of interpretation that regards the Convention as a ‘living instrument’. Even allowing
for necessary changes over the decades, the ECtHR has used its ‘living instrument doctrine’
to expand Convention rights into new areas, and certainly beyond what the framers of the
Convention had in mind when they signed up to it. There is mounting concern at Strasbourg’s
attempts to overrule decisions of our democratically elected Parliament and overturn the UK
courts’ careful applications of Convention rights.
For instance:
o

The current dispute between the Court and the United Kingdom over voting rights for
prisoners is one clear example. The issue of the franchise in elections was deliberately
excluded from the text of the Convention. The Strasbourg Court has, however, now
decided that it falls within the Convention’s ambit.

o

Another clear example of ‘mission creep’ came in a 2007 ruling by the Court that
required the UK Government to allow many more prisoners the right to go through
artificial insemination with their partners, in order to uphold their rights under Article 8.
This is not what the originators of the Convention had in mind when they framed that
article.

o

There have also been cases involving foreign nationals who have committed very serious
crimes in the United Kingdom, but who have been able to use the qualified rights in the
Convention, as interpreted by the rulings of the ECtHR, to justify remaining in the UK.
These judgments have apparently overlooked the very clear qualifications in the
Convention relevant to the legitimate exercise of such rights.

o

In 2013 the Strasbourg Court ruled that murderers cannot be sentenced to prison for life,
as to do so was contrary to Article 3 of the Convention. This Article is designed to prohibit
“torture” and “inhuman or degrading treatment or punishment.” For the Strasbourg Court,
this entails banning whole life sentences even for the gravest crimes.

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 PROTECTING HUMAN RIGHTS IN THE UK

ï‚·
Labour’s Human Rights Act undermines the role of UK courts in deciding on human rights
issues in this country. Section 2 of the HRA requires UK courts to “take into account” rulings
of the Strasbourg Court when they are interpreting Convention rights. This means problematic
Strasbourg jurisprudence is often being applied in UK law. Strasbourg jurisprudence includes
the doctrine of ‘proportionality’, and the application of this doctrine has led judges to question
whether provisions of legislation and decisions of public authorities are ‘proportionate’ to
their objectives, which can amount to an essentially political evaluation of different policy
considerations. We also believe that in many areas the interpretation given to Convention
rights has not struck the appropriate balance between individual rights and responsibilities to
others.
ï‚·
Labour’s Human Rights Act undermines the sovereignty of Parliament, and democratic
accountability to the public. Although, the HRA affirms the sovereignty of the UK Parliament
over human rights matters, Section 3(1) undermines Parliamentary sovereignty in practice.
This provision requires UK courts to read and to give effect to legislation in a way which is
compatible with Convention rights, “so far as it is possible to do so”. There are cases in which,
due to this rule, UK courts have gone to artificial lengths to change the meaning of legislation
so that it complies with their interpretation of Convention rights, most often following
Strasbourg’s interpretation, even if this is inconsistent with Parliament’s intention when
enacting the relevant legislation.
For instance:
o

The Misuse of Drugs Act makes it a criminal act to possess an illegal drug, but provides
the defence for the defendant to prove, on the balance of probabilities, that they did not
know, suspect or have reason to suspect that what they had was an illegal drug. However
in 2001 the House of Lords ruled, under section 3(1) HRA that the Act must be read as
only requiring the defendant to submit evidence supporting their claim that they did not
know or suspect that what they had was an illegal drug, after which it fell to the
prosecution to prove beyond reasonable doubt that they did not know or suspect this.
This was done under Article 6 of the Convention, the right to a fair trial.

ï‚·
Labour’s Human Rights Act goes far beyond the UK’s obligations under the Convention.
Whilst the Convention imposes on states the requirement to secure the rights and freedoms
in the convention for its citizens, it does not mandate any particular legal mechanism for
doing so. It does not require the direct incorporation given effect by the Human Rights Act, nor
does it require the jurisprudence of the Strasbourg Court to be directly binding on domestic
courts. The German Constitutional Court for example ruled that if there is a conflict between
the German Basic Law and the ECHR, then the Basic Law prevails over the Convention. The
Human Rights Act provides no such domestic protection in the UK.

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 PROTECTING HUMAN RIGHTS IN THE UK

THE CONSERVATIVES’ PLAN FOR CHANGE
Protecting fundamental human rights is a hallmark of a democratic society, and it is central to the
values of the Conservative Party. However, the present position under the European Court of
Human Rights and the Human Rights Act is not acceptable. The next Conservative Government
will make fundamental changes to the way human rights laws work in the United Kingdom, to
restore common sense and put Britain first. Our reforms will mean that:
ï‚·

The European Court of Human Rights is no longer binding over the UK Supreme Court.

ï‚·

The European Court of Human Rights is no longer able to order a change in UK law and
becomes an advisory body only.

ï‚·

There is a proper balance between rights and responsibilities in UK law.

Our proposals are grounded in two basic legal facts.
ï‚·

There is no formal requirement for our Courts to treat the Strasbourg Court as creating
legal precedent for the UK. Such a requirement was introduced in the Human Rights Act,
and it is for Parliament to decide whether or not it should continue. Many European
countries, including Germany, do not place such a requirement on their national courts.

ï‚·

In all matters related to our international commitments, Parliament is sovereign. This
principle has been clearly established in judgements by the House of Lords and in public
statements by Government law officers.

At the heart of our plan is a new British Bill of Rights and Responsibilities. It will ensure that
Parliament is the ultimate source of legal authority, and that the Supreme Court is indeed
supreme in the interpretation of the law. We will shortly be publishing a draft of this Bill, to begin
a process of engagement and consultation on the best way to achieve our aims. This will ensure
we deliver our reforms in a comprehensive and credible way.
The key objectives of our new Bill are:
ï‚·

Repeal Labour’s Human Rights Act.

ï‚·
Put the text of the original Human Rights Convention into primary legislation. There is
nothing wrong with that original document, which contains a sensible mix of checks and
balances alongside the rights it sets out, and is a laudable statement of the principles for a
modern democratic nation. We will not introduce new basic rights through this reform; our
aim is restore common sense, and to tackle the misuse of the rights contained in the
Convention.
ï‚· Clarify the Convention rights, to reflect a proper balance between rights and
responsibilities. This will ensure that they are applied in accordance with the original intentions
for the Convention and the mainstream understanding of these rights.

PAGE 5

 PROTECTING HUMAN RIGHTS IN THE UK

For instance:
o

We will set out a clearer test in how some of the inalienable rights apply to cases of
deportation and other removal of persons from the United Kingdom. The ECtHR has ruled
that if there is any ‘real risk’ (by no means even a likelihood) of a person being treated in
a way contrary to these rights in the destination country, there is a bar on them being
sent there, giving them in substance an absolute right to stay in the UK. Our new Bill will
clarify what the test should be, in line with our commitment to prevent torture and in
keeping with the approach taken by other developed nations.

o

The Convention recognises that people have civic responsibilities, and allows some of its
rights to be restricted to uphold the rights and interests of other people. Our new Bill will
clarify these limitations on individual rights in certain circumstances. So for example a
foreign national who takes the life of another person will not be able to use a defence
based on Article 8 to prevent the state deporting them after they have served their
sentence.

o

Some terms used in the Convention rights would benefit from a more precise definition,
such as ‘degrading treatment or punishment’, which has arguably been given an
excessively broad meaning by the ECtHR in some rulings. For example in one case, the
simple fact that an individual would have to live in a particular city in Somalia was
deemed put him at real risk of degrading treatment.

o

It will not necessarily be possible to clarify every potential application of Convention rights
in the new law. Parliament will consider the Convention rights set out in the law in all the
legislation it passes.

ï‚· Break the formal link between British courts and the European Court of Human Rights. In
future Britain’s courts will no longer be required to take into account rulings from the Court in
Strasbourg. The UK Courts, not Strasbourg, will have the final say in interpreting Convention
Rights, as clarified by Parliament.
ï‚· End the ability of the European Court of Human Rights to force the UK to change the law.
Every judgement that UK law is incompatible with the Convention will be treated as advisory
and we will introduce a new Parliamentary procedure to formally consider the judgement. It will
only be binding in UK law if Parliament agrees that it should be enacted as such.
 Prevent our laws from being effectively re-written through ‘interpretation’. In future, the
UK courts will interpret legislation based upon its normal meaning and the clear intention of
Parliament, rather than having to stretch its meaning to comply with Strasbourg case-law.
ï‚· Limit the use of human rights laws to the most serious cases. The use of the new law will
be limited to cases that involve criminal law and the liberty of an individual, the right to
property and similar serious matters. There will be a threshold below which Convention rights
will not be engaged, ensuring UK courts strike out trivial cases. We will work with the devolved
administrations and legislatures as necessary to make sure there is an effective new
settlement across the UK.

PAGE 6

 PROTECTING HUMAN RIGHTS IN THE UK

ï‚· Limit the reach of human rights cases to the UK, so that British Armed forces overseas
are not subject to persistent human rights claims that undermine their ability to do their job
and keep us safe.
ï‚· We will amend the Ministerial Code to remove any ambiguity in the current rules about
the duty of Ministers to follow the will of Parliament in the UK.

PAGE 7

 PROTECTING HUMAN RIGHTS IN THE UK

THE INTERNATIONAL IMPLICATIONS FOR OUR PLAN
Our plan will restore public confidence in the Human Rights framework in this country.
Nevertheless, we are aware that, under the terms of the current treaty it will remain open to
individuals to take the UK to the Strasbourg Court claiming a breach of their Convention rights,
and resultant judgments of the Court will be seen to be binding on the UK as a treaty obligation.
The UK stands by the commitments made when we signed the Convention, and it is only the
subsequent approach of the Court and Labour’s Human Rights Act that have eroded public
confidence in our human rights framework. It would be wrong to renounce the Convention
unilaterally when it is not our principled commitment to fundamental human rights that has
changed. We would like the UK to remain a party to the Convention, as part of our membership of
the Council of Europe. We hope, therefore, that the Council will recognise these changes to our
Human Rights laws.
ï‚· During the passage of the British Bill of Rights and Responsibilities, we will engage with
the Council of Europe, and seek recognition that our approach is a legitimate way of applying
the Convention.
ï‚· In the event that we are unable to reach that agreement, the UK would be left with no
alternative but to withdraw from the European Convention on Human Rights, at the point at
which our Bill comes into effect. We would do so safe in the knowledge that the text of the
Convention itself is enshrined in our own statutes, protecting human rights in line with the will
of the British Parliament and the rulings of British Courts.

THE EU DIMENSION
In addition to, and separate from, the European Convention on Human Rights, the UK is a
member of the European Union (EU). The EU Charter of Fundamental Rights was given force in EU
Law by the Lisbon Treaty. The Charter contains a range of rights, drawing upon the ECHR. The
Court of Justice of the European Union is responsible for the interpretation and application of the
Charter, but its force is limited to matters within the scope of EU law.
The Lisbon Treaty also enabled the EU to sign up to the Convention in its own right. Negotiations
are ongoing over the terms of the EU’s accession to the ECHR, which will have to be agreed by all
EU Member States and all ECHR countries. We are mindful that there may be legal
implications for our approach once the EU accedes to the ECHR. We will therefore ensure this is
reflected in the rules that will govern the EU’s interaction with the Court. The EU’s application to
join the Convention requires the unanimous agreement of all member states, which will allow us
to ensure that the UK's new human rights framework is respected.
Finally, the Conservatives are clear that our relationship with the EU will be renegotiated in the
next parliament, and if there is anything in that relationship which encroaches upon our new
human rights framework, then that is something it will be open for us to address as part of the
renegotiation.


 

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