GMLC campaign volunteer Judy Sutton analyses the government’s plan to scrap and replace the Human Rights Act 1998, explaining the proposed changes and why they are a risk to all our rights.
During the Queen’s Speech on Tuesday 10 May 2022, the government announced a raft of legislative changes, including their plan to replace the Human Rights Act 1998 with a UK Bill of Rights. This change is due to be implemented during this parliamentary session. Greater Manchester Law Centre has grave concerns about this attack on our fundamental rights. This article will explore the so-far proposed changes and some of their potential impacts.
- The legal concept of human rights was set out in the Universal Declaration of Human Rights in 1948 following the horrors of WW2.
- The European Convention on Human Rights (ECHR) came into force in 1953, followed by the European Court of Human Rights in 1959.
- The Human Rights Act 1998 (HRA) was introduced in the UK to embed the Convention’s rights into national law, enabling individuals to have their human rights cases heard in UK courts. Many landmark cases have helped to make positive change in society – here’s just 50 of them.
The UK Bill of Rights aims to begin a partial withdrawal from the ECHR, paving the way for a future full withdrawal. On 14 June 2022, Prime Minister Boris Johnson announced that he would consider UK withdrawal from the ECHR. Belarus and Vatican City are the only European countries not signed up to the ECHR. In February 2022, Russia was suspended, due to its actions in Ukraine, and has since withdrawn.
Despite the government’s rhetoric about a lack of independence for the UK, ECHR does not set law in any of the countries it applies to. It makes a judgement when something is ‘incompatible’ with protected human rights and lets the individual governments decide how to fix this incompatibility.
Details are sketchy but we do know the UK Bill of Rights aims to:
- Amend or remove the duty of UK courts to take account of case law from the European Court of Human Rights. This would mean that human rights recognised in mainland Europe would not necessarily be protected here, unless national court and parliamentary structures chose to protect them.
- Introduce an ‘overriding public importance’ test for cases. This will prevent some cases going to court, potentially leading to public authorities not being held accountable for human rights violations.
- Introduce a permission stage. Claimants must prove they have suffered “significant disadvantage”. This adds a layer of complexity and gatekeeping to taking human rights claims further. Again, this will mean cases that would have previously been considered will no longer make it to the courts.
- Limit extraterritorial application of human rights. This would aim to remove protection of human rights law from those affected by UK public authorities’ actions overseas – which is interesting to consider in light of the government’s recent policy of sending detained migrants to Rwanda.
- Damages awarded will be limited depending on “past behaviour”. This proposal weakens the universal nature of human rights protections and is likely to result in discrimination towards people who can be demonised, such as those with criminal records.
- Judges can no longer strike down secondary legislation. Currently judges cannot strike down Acts of Parliament (known as primary legislation) that breach human rights. Instead, they can make a ‘declaration of incompatibility’, which informs the government that a law is incompatible with human rights. Ministers choose whether to do anything about this or not. But Judges can currently strike down ‘secondary legislation’ which are laws that are made to give effect to an Act of Parliament. As secondary legislation receives only limited time for discussion in the Houses of Parliament, this change represents a significant threat to human rights, particularly in the hands of a freewheeling government that have been making large amounts of secondary legislation without any parliamentary or public scrutiny.
- Private providers of public services may not have to behave in a way compatible with human rights legislation. Increasingly private and profit-making companies operate in health, social care, and justice services etc. They work with some of the most vulnerable in society. For example, there are 80,000 children in the care of local authorities and 83% of the residential care market is in the hands of private providers.
Evidence supporting the need for change
There is no credible evidence supporting the need for change. The government’s own Independent Human Rights Act Review (IHRAR) considered extensive evidence and published a lengthy report in December 2021. They concluded that there is no good case for making significant changes to the HRA, even though the government handpicked the IHRAR panel members and drafted its terms of reference. In fact, they say that their aim is to “improve the operation of the Human Rights Act 1998”. The government is ignoring recommendations they commissioned because the facts do not fit with their political agenda.
The government talks about abuses of the system and legal loopholes being utilised by ‘activist lawyers’, but they give few specific examples that do not turn out to be far more complicated than they suggest. The right to due process is a core part of a democracy, and the government want to take it away.
The Justice Minster Dominic Raab writes “I want to end the abuses of the system that can give human rights a bad name”. The assumption that human rights have a ‘bad name’ is disputed, and polls in previous years have suggested that the issue is party-political: scrapping the Human Rights Act only widely appeals to right-of-spectrum voters. This implies that the desire to scrap the Act is red meat for voters who oppose human rights protections, rather than something the wider public support.
Who will be affected?
In short, all of us will be affected. The HRA helps ensure that our fundamental freedoms are applied without discrimination and that the UK’s protections improve in line with other European nations. If full withdrawal is agreed, there will be inadequate protection in the UK and no recourse to the European Court.
There is also the question of how this will affect the devolved nations, as ECHR compliance is written into devolution settlements, the Good Friday Agreement and Brexit treaties.
Opposition to the Bill of Rights
Opposition to the Bill of Rights is widespread. Many politicians, trade unions, charities, activist groups, campaigners, legal organisations and religious leaders share the same concerns. The Bill of Rights and other legislation the government has recently passed (such as the Police Crime Sentencing and Courts Act) represent an assault on hard-won rights for ordinary people, and particularly for those communities already marginalised, oppressed, or experiencing discrimination.
Human Rights Watch (HRW) monitors human rights abuses across the world. They are concerned that if the UK dilutes its protections provided for in the ECHR (or withdraws entirely) it could encourage other European states to follow suit, with grave impacts on their populations. It could be used as a justification by states to regularly flout the decisions of the Court. This attack on human rights represents a shift towards authoritarianism and reduced rights for us all, and it must be resisted.