Human rights came to the fore in politics after the world witnessed the atrocities of World War Two. States came together to sign the Universal Declaration of Human Rights, starting a trend which has seen most regions in the world adopt their own human rights conventions (the UK being a signatory to the European Convention on Human Rights). These Conventions generally set out a list of universal human rights, which are enforced by provided mechanisms.
But what are human rights? Are they absolutes? Are they universal principles which should never be infringed? To me rights do not limit the political process in such a way. They form part of the political process. Rights are a consideration for Parliament and courts in any decision on how society is run. However, they limit neither body. In the words of the brilliant Conor Gearty, “rights are a creature of politics rather than a hedge on politics”.
This is the approach adopted by the Human Rights Act. The Act creates a ‘democratic dialogue’ between the courts and executive to ensure the protection of rights without limiting Parliament’s power. This is notable in three provisions. Section 3 instructs the court, as far as is possible, to read existing legislation compatibly with Convention rights. Whilst this allows the courts to ensure legislation is compatible with rights, it leaves it open for Parliament to legislate if they disagree with an interpretation of the court. Section 4 allows the courts to declare legislation incompatible with Convention rights. The effect of such a declaration does not render the incompatible legislation invalid. Rather, the declaration acts as a political message to the executive which forms of part of the ‘democratic dialogue’ for rights protection. Section 19 requires all legislation passed through Parliament to be signed by a Minister as either complying or not complying with Convention rights. It does not limit Parliament’s law making power (legislation can still be passed if a Minister believes it infringes Convention rights), only ensures human rights are accounted for in the law making process.
The set up of the Human Rights Act which creates a ‘democratic dialogue’ thus effectively places rights in their correct context. Rights inform and become part of the political process. However they do not limit the political process. The Act creates a foundation for the organic growth of a rights culture in the British legal system.
Society inevitably faces challenges and dilemmas. Rights provide one answer to these dilemmas. However it is only one answer and they are not a panacea for any social problem.