Theresa May wants to scrap the human rights act

[electra]

I heard this on radio 4 at the weekend.

Apparently it's something to do with 'foreigners taking advantage' - wow the tories have a nice way of sounding prejudiced against just about anyone don't they?

I would like to see a UK Bill of rights which protects the rights covered by the ECHR and also extends those rights so that they can be applied by one citizen against another, or against a private company. I would like this act to be given higher status than usual acts, so that it can bind the government in its policy making and make it possible to strike down law which is against human rights. I would want it to be quie difficult for these rights to be changed. I am very uncomfortable with the current situation because private companies are not bound by the Human Rights Act in the same way that public bodies are, which is a massive loophole.

I don't think it would be necessary to remove the Human Rights Act to do this and I think it would be unwise at best to do so. Without a Bill of Rights which can bind the government, and which cannot be changed by them when it becomes inconvenient to respect women / disabled people / general minorities, I think we would be very vulnerable. At the moment the basic rights of people are only respected by the government when it suits them (we have no mechanism to strike down e.g. racist laws) and when the ECHR protect us.

Scarlet - what country has similar ethos and values to our own, and is not party to the Human Rights Act?

And to be fair, anyone listening to my telephone conversations would probably die of boredom before they learned anything of interest!

An interesting background to this, which can easily be obscured by the emotive 'If you're not for the HRA you're against human rights' stuff is that English common law is profoundly different to Napoleonic law. Napoleonic law states the rules explicitly, and one rule can only be changed by replacing it with another. English common law is largely created in the courts, as judges set precedents.

Very crudely, the difference is that Napoleonic law forbids things unless they're specifically allowed, whereas common law allows things unless they're specifically forbidden. The UK right to freedom of speech, or the right to strike, can exist under common law without ever needing statutory protection, simply because there is no law forbidding it. Under common law, the description of something in a statute may not necessarily enshrine that right - it may actually circumscribe it by outlining its limitations.

On the other hand, under Napoleonic law there is no right to free speech unless someone passes a law explicitly describing that right.

What we've been seeing in recent years, particularly since the Lisbon Treaty enshrined the ECJ as Europe's supreme court, is a widespread cultural confusion about which way round our laws work. I think this confusion lies at the heart of the cultural malaise that often pops up in small-scale interactions these days. Under common law, with everything permitted unless explicitly forbidden, a mesh of social norms fills in the gaps: you refrain from doing something that inconveniences your neighbour not because they're illegal but because society expects you to refrain. The incursion of a more Napoleonic attitude breeds a greater temptation to say 'I can do this thing that annoys my neighbour, because it's not illegal so you can't stop me.' Then the only way to solve it is to create more and more laws that say what is and isn't illegal - witness the rash of new offences created under NuLab to do exactly this. And in the process people complain of micromanaging, and of people less and less able to rely on common sense and social norms.

I'm not saying this can all be blamed on the conflicts between Napoleonic and common law approaches, but they go some way to illustrating the ways in which these competing systems are changing the culture of this country. To my mind the HRA is a minor part of a much larger picture, and I would prefer to see it scrapped in that light. Not because I think murder or slavery are OK.

Ajandjj, only the UK is subject to the Human Rights Act. Almost all European countries (including those which aren't EU member states) are signatories to the Convention though.

So Werewolef, we (in the UK) can do what we want, as long as there's no specific law against it?

Whereas in other European countries you can't do something unless their law specifically allows it?

that's correct - it was something decided in the late 19th century as a principle of English and Welsh (not sure about Scottish) law. If it's not legislated against, you can do it.

That is really interesting. So - in theory - our society has more freedom than others?

aj Yes - under that system a society would in principle have more freedom.

This is what lies behind the objections to - on the one hand - incursions into civil liberties such as restrictions on the freedom to assemble, and on the other hand the creation of new laws to 'protect' what's left of those rights.

Essentially there's an argument that says the laws that 'protect' are as restrictive, in their way, as the laws that make the incursion in the first place: in both cases they're creating legal structures where previously there were none, and under common law any law is more restrictive than no laws, meaning that 'protective' laws are still in effect a reduction in presumed freedoms.

It's a fundamental change in the way we relate to the law. I get a bit bothered by the way in which debate about whether it's a good thing or not often gets hijacked by either the 'objections are xenophobic and bigoted as you must hate Europe' argument, or else the straw man of 'if you object to human rights legislation you must object to human rights full stop'.

And there is no protection under common law for minorities and other groups. So before 1975, it was not illegal (or to put it another way, companies were free) to pay a woman less than a man for doing the same job.

Sometimes one person's freedom is at another person's expense. Hence: legislation.

ajandjjmum, the UK only has more freedom if it is not interfered with. In practice it doesn't work that way though. In the UK a right can be gradually eroded by legislation which chips away at it a little at a time. Think for example the increase in the number of days which someone can be held without trial. The citizens have no power to challenge this directly in courts, so unless it is a very important issue which would decide elections or cause large scale protesting, there is no challenge to the erosion. In a country with a legal system like most of Europe uses, which had legislated to protect a right, that right cannot be chipped away at in the same fashion. So the right is better protected when you put limits on it, so long as the limits are sensible, and the country is more "free" for having those limits. The limits end up being not only limits on how the citizen can use the right, but also limits on how far the government can prevent the exercise of that right.

Abs- not always no; I did Ethics as part of my degree and many there had never encountered the HRA in any real way.

Rather sadly.

Riven exactly- why would the state pay for ds3 to have an education when there is no hope of him paying taxes if they are not forced to?

The only reasons would be kindness or being forced to via HR legislation.

No idea what would happen to ds1; needs Sn support but is a future taxpayer as are all the children in his very specialist Base. What would The Daily Hate make of that eh? Bright children with bright futures who need Sn support- oh it would fairly put you off your sudoku.

Like the namechange Peachy

So before the HRA passed the governemt refused to educate children who wouldn't be tax payers. I don't recall that - does anyone else?

I think there's a danger of imagining that if the HRA doesn't forbid it then we will do it. We already had laws regarding most of the things in the HRA because we are a fairly civilised country (not in every way or all the time). We managed fine for ages thanks very much.

The point surely of HRA or a Bill of rights is that they are meant to be more permanent and not to be changed by later governments. There is a value in that, but let's not pretend the HRA is the only thing standing between us and anarchy.

Thanks Abs except we only went and got google chrome with spellcheck sorted the day after I swapped LMAO

Okay, so in the 1970s we decided it was wrong not to have a guarantee in law for disabled children to have an education. We changed it so there was.

Good for us then and we did that without the EU telling us.

Onager I certainly know people who used the HRA to force the Government to provide an education for their children, yes. She had severe spina bifida and wasn't expected to live beyond 12; I think she was 24 when she passed.

Of course pre- HRA - up until the 70's recently- the majority of children were 'educated' in secure LD hospitals, parents were put under extreme pressure if they did not want to lose their child; they were told to forget about this one and have another on diagnosis. I worked in one of those as the system started to be closed down, not something I wish for my children and 'education' is a complete piss take when you see what the places- a better description would be given the basics needed for life.

The Tories were the party who ended a lot of that- I was nurse training at the time so well aware. But I am noting an increased tendency of stretched SW to threaten parents asking for 'tto much' help with a permanent in patient placement again. Do i think it's 'evil Tories'? No. It's individual SW departments doing everything they can to save every penny. but the HRA is a weapon that people can- and do- cite to prevent it. There are very few weapons one can use to require SSD to provide what people caring need. HRA is one of the few that does exist.

I'm trying to remember if I've ever threatened anyone with suing it; certainly i've used EU Equality legislation to ensure ds3 didn't have to sit in a dirty nappy all day but think I got what we wanted (not that much- a place in a generic base for ds3, lunchtime help for ds1 to stop the angry parents knocking on the door and threatening me), but I would dread the removal of anything enshrined in the HRA especially if it is parallel with leaving the EU as dropping the HRA seems to mean. Since using EU legislation and getting DS3 his place at a Base against thw wishes of the LEA, ds3 has leaned speech, become continent and is doing better than I ever imagined. I hope that means is still there for the next parent needing it.

Personally I would welcome it - it seems ironic that the government that signed up to it hook line and sinker is also the one that happily did business with China/Russia/India who are all currently getting VERY rich as a result of their inhabitants having no human rights.

Its badly misused I do think if you are found guilty of a criminal act of any kind or plot to kill someone (e.g. terror plots) then you should AUTOMATICALLY lose your right to use this act in any way. Not gonna happen so scrap it, we are too literal!

Do we want a legal system that is not literal?

Riven to me or Onager?

Personally I think it's the Eu stuff that makes the most difference but after EU Equality stuff (you know the laws I mean a swell as I do) the only recourse is HRA.

eople fight every day to get support- there's no legal right to the vast majority of SW contact, beyond an assessment- so people will have nothing to use to get help and SW will simply stop helping.

Riven you know as much as I do on this; sound about right?

Peachy other countries are in theory signed up to the act but seem far more able to deport criminals than we are - i'd love to know why!