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Reforms to UK Human Rights Laws Must Not Weaken Protection

Huffington Post, 03/02/2016

The future of human rights protection in the United Kingdom is on the verge of change as the government prepares its consultation to replace the Human Rights Act with a Bill of Rights. The consultation stage represents a critical step whose result I hope will dispel fears of regression in the UK's commitment to human rights.

During a recent visit to the UK, I had the possibility to take the pulse of this debate as I met with a number of ministers and non-governmental organisations in Edinburgh, Belfast and London. The clear impression I got is that the debate over the repeal of the Human Rights Act does not reflect the real concerns outside England, where the European Convention on Human Rights and the Strasbourg Court are generally viewed positively as catalysts for positive change.

Indeed, the case law of the European Court of Human Rights has highly benefited UK citizens over the past four decades by triggering legislative changes at domestic level that have improved various aspects of the everyday life of millions. Take the case of gay people. Today the large majority of UK society would reject proposals to discriminate against a person because of his or her sexual orientation or gender identity. Decriminalisation of homosexuality and greater rights protection for homosexuals across the country came about as a consequence of the Strasbourg Court's judgments finding the UK in breach of the European Convention on Human Rights. The same holds true for various other practices that we abhor today - such as corporal punishment in schools for example - but which were a reality before the UK adjusted its legislation and practice to comply with the Court's case-law.

Over the years of its membership in the Council of Europe, the UK has maintained a fairly smooth relationship with the Convention system. Having largely contributed to its establishment, the UK has also played a leading role in amending and developing it over the decades. As recently as 2012, the UK's blueprint for reform of the Convention won the approval of fellow European countries and led to a series of measures to address key issues, such as reducing the Court's case backlog, increasing the quality of selection and appointment of judges and reaffirming the principle of subsidiarity and the margin of appreciation that every state party to the Convention enjoys.

The influence that the UK still exerts on the Convention system is based also on its good performance in upholding the human rights enshrined in the Convention. Among European countries of comparable size, the UK has the lowest number of judgments against it found by the European Court of Human Rights since 1959, and the second highest number of judgments among all 47 member states of the Council of Europe in which no violation was found.

No surprise, then, that the current debate in the UK has broader European ramifications. Every step of this debate and its outcome is closely scrutinised by other European states, in particular those with a much less flattering performance in protecting human rights. Many are in fact eager to exploit any backsliding in Westminster's commitment to the Convention system to justify measures reducing their own citizens' and residents' ability to obtain justice through the Convention system.

This background should be used to better frame the debate on the repeal of the Human Rights Act. Far from acting as a Trojan horse which threatens the UK's sovereignty, the Human Rights Act has proved over the years a good example of how Convention rights can be incorporated into domestic law and foster positive improvements in UK society. Just days ago, the families of service men and women who died in training were able to finally obtain an inquest into their children's deaths, twenty years later, by using the Human Rights Act.

Each member state of the Council of Europe is free to decide the best way to ensure that the European Convention on Human Rights is implemented domestically. The Human Rights Act does not represent the only model available, but a Bill of Rights or any other substitute should in no case weaken the guarantees available to individuals subject to UK jurisdiction to claim their rights.

The consultation on the repeal of the Human Rights Act represents therefore a defining moment for human rights protection in the UK - and beyond. This phase deserves dispassionate, principled and factual discussion which needs to look at all the consequences, both at home and abroad, attached to a possible alteration of the current system. A good case for the need to repeal the existing Act still has to be made.

Nils Muižnieks

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