Bill of rights : Evaluation Flashcards
INTRO
What is a bill of rights?
A BOFR is a written constitution to protect individuals liberty from public authorities and each other. Countries like USA have written constitutions as do most European countries.
Human rights for the Uk citizens are found in the ECHR which has been incorporated into UK law through the human rights act 1998.
PARAGRAPH 1
Replace the HRA with BOFR
Many people argue that our rights would be better protected if we repealed the human rights act and replaced it with a bill of rights so that it would become entrenched. This would make the law difficult to change as it would take a referendum to alter the law. This is considered better protection because the HRA is just an ordinary legislation that can be repealed easily.
However BOFR is only as good as the country that enforces it. Not everyone would be condident with our government writing a BOFR. It would take a lot of time for the different parties and the Scottish and Welsh assembly to agree on what should be included.
PARAGRAPH 2
The BOFR would improve and modernise new rights.
Those in favour of the BOFR feel that the law could be modernised and new rights such as economic and social rights could be added and it would improve the rights of protecting an individual from the powerful. It would set out expectations on treatment from public authorities and othes and give a framework of our common values. However, the public wen asked in a MORI poll said they did not care about having a BOFR. Others have pointed out that the HRA is still quite new and may not have settled in properly yet, furthermore the convention is considered a living instrument and it is possible to add rights to the convention via protocols. Having a BOFR may not mean better laws highlighted by the problem the USA have had with the second amendment and the right to bear arms.
PARA 3
Concerns that the HRA has been eroded by other legislation.
Some people are concerned that human rights have been eroded by other legislation such as the CJA 2003 s44 which allows for trial without a jury, as seen in the Heathrow robbery case. This goes against the fundamental right to be tried by our peers as stated by the Magna Carter 1215.
Furthermore, police have very wide powers under PACE which many feel breaches HR. David cameron argued a bill of rights would give greater protection to british citizens and would therefore be better. The conservatives would like to be able to deport non-british people who commit crimes in this country. In the Chindamo case a 15 year old italian born boy stabbed his headmaster to death. This was held to breach article 8 as chindamo has lived in the UK since he was 6 years old, and couldnt speak italian. If were able to deort in cases like chindamo it would be a further erosion of HR as it would mean a criminal would forfeit their HR because theyve commited a crime. Also, it would mean a criminal could be deported to a country where they may face torture. By allowing british people to have greater protection than the non british we do not look good to other countries. The whole point of the HRA is that it applies to everyone, no matter who they are and they should not be conditional.
On the other hand, it does mean that tax payers money wont be spent on keeping a criminal.
Furthermore, the public may be safer if the criminal is removed from the country.
PARA 4
The role of the judiciary would also change
The role of the judiciary would also change if we were to have a BOFR because they could strike out offending laws and would no longer have to issue declarations of incompatibility like in the Belmarsh case. In this case non british nationals were held indefinitely without trial or charge, because they were suspected of terrorism because the Anti terrorism crime and security act 2001 allowed this. This meant the court had to apply the offending law to th case, resulting in the applicants being sent back to detention until the offending law had been changed. If there was a BOFR judges could strike out an offending law, which is good in some respects but would also mean that the non-democratically elected judiciary would be removing law created by the democratically elected parliament and this could be considered an excess of power.
PARA 5 : CONCLUSION
In conclusion..
In conclusion it does not appear that a BOFR truly offers more benefits than the HRA and the potential problems that are couple with the BOFR does not make it an attractive option.
Judges should maintain there role as guardians of the rule of law and not take powers reserved for the legislature. Laws should not be entrenched as then they become too problematic to change.
However since BREXIT the draft of BPFR has been put forward, and it seems increasingly likley a bill of rights will follow.
