united-kingdom constitutional-law human-rights separation-of-powers constitutional-rights
ABRA Powers violative of human rights act
<p>Parliament tomorrow passes the Arbitrary Bullocks Removal Act 2023, entitling (but crucially not obliging; in other words, bestowing a power though not a duty) the minister of Justice to arbitrarily select individuals to be castrated at his will. In order to do so he must sign a warrant of  a certain prescribed form, and upon the act taking effect minister of Justice Alex Avery exercises his power to condemn citizen Bob Bolger to removal of his bollocks. He does everything exactly to the letter of ABRA 2023, but in exercising the power created and granted to him by ABRA, he is clearly violating several of Bob’s human rights, not least Articles 3&amp;6.</p>
<p>(Note that HRA 1998 is a constitutional act.)</p>
<p>Is there not some doctrine which suggests that Minister Avery as a government official must not act in ways which contravene citizens’ human rights?</p>
<p>Bob applies thus for judicial review of Minister Avery’s decision to issue the ABRA warrant for his arbitrary castration, on grounds that his decision to exercise the power given to him by ABRA has the effect of violating Bob’s human rights.</p>
<p>Yet, one may also perhaps quite easily argue that the power bestowed on the government by ABRA inherently violates, and cannot but violate, its subjects’ human rights, and so it cannot be exercised without violating subject citizens’ human rights.</p>
<p>Perhaps, as per a different answer by Dale M., the UK judiciary may not nullify ABRA itself, but can it reverse any particular decisions by relevant government ministers to actually exercise the powers bestowed to them by the Act’s provisions?</p>

<h2>Human rights are not inviolate</h2>
<p>Even the <a href="https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf" rel="nofollow noreferrer">Universal Declaration of Human Rights</a> recognises this in Article 29.</p>
<p>This is obviously true when you think about it: there will be circumstances where the human rights of two individuals are in conflict - one of them must lose. Ongoing debates in the USA on abortion are an example of this.</p>
<p>Accepting that the proposed law is hyperbolic (in the current political climate - many laws passed in Nazi Germany were equally hyperbolic), there is no conflict with the Human Rights Act.</p>
<p><a href="https://www.legislation.gov.uk/ukpga/1998/42/section/6" rel="nofollow noreferrer">s6</a> deals with this head on:</p>
<blockquote>
<p>(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.</p>
</blockquote>
<p>So, we start from the happy place that the Minister can’t have Bob’s balls. However it continues:</p>
<blockquote>
<p>(2) Subsection (1) does not apply to an act if—</p>
</blockquote>
<p>So, it looks like Bob’s balls might still be on the block.</p>
<blockquote>
<p>(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or</p>
</blockquote>
<p>Fortunately for Bob, the ABRA primary legislation gave the Minister discretion so he <em>could</em> have acted differently.</p>
<blockquote>
<p>(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.</p>
</blockquote>
<p>Assuming the court accepts that the provisions “ cannot be read or given effect in a way which is compatible with the Convention rights” which seems to be the case: you can’t remove an unwilling person’s testicles without violating their rights, the court must accept that the Minister “ was acting so as to give effect to or enforce those provisions.”</p>
<p>Too bad for Bob.</p>
<p>You seem to be struggling under the misapprehension that human rights can never be violated by the government. This is not the case.</p>
<p>Even in nations with Constitutional protection of rights, the law allows for the government to restrict or limit them where appropriate. For example, even in the USA, my freedom of expression does not extend to sharing top secret information with a journalist.</p>
