The Human Rights Act was passed by parliament in 1998 and came into force two years later. This act represents part of the wide-ranging constitutional reform agenda that was furthered by Tony Blair’s new Labour government. There are two principal misconceptions surrounding the act that are important to clarify now that the current government is preparing legislation for a British bill of rights.
The first misconception is that the Human Rights Act somehow stemmed from the UK’s membership of the European Union. In fact the act gave domestic legal effect to those rights contained in the European Convention on Human Rights (ECHR), a treaty separate from the EU to which the UK has been a party since 1966.
The second misconception is the Human Rights Act gives the courts the power to strike down legislation made by parliament which is found to violate the human rights the act protects. In fact, under the act, courts can only declare that legislation violates the rights concerned and it is then left to parliament to decide whether to change such legislation so that it is in line with the act (this is a practice parliament tends to do).
In this way the Human Rights Act is respectful of parliamentary sovereignty, under which the courts may not nullify laws made by parliament. This differs from most other countries where rights tend to be constitutionally ‘entrenched’, meaning that courts will invalidate legislation that infringes them.
Conservative objections to the Human Rights Act
There are factions within the Conservative Party that have long expressed objections to the Human Rights Act. These factions have at various times called for replacing it with a so-called ‘British bill of rights’. As home secretary, Theresa May went further when she called for the UK to withdraw from the ECHR, although this position did not and does not represent party policy.
Conservative criticisms of the act are abundant. However, one of the most levelled charges is that the rights the act protects are essentially European creations and not tailored to British needs. Those making this charge suggest that too much power is placed in the hands of judges to determine what are regarded as essentially political questions, and that the act has allowed a ‘rights culture’ to creep into legal processes where questionable claims are brought before the courts by undeserving categories of criminals, prisoners, and others.
The current government is taking advantage of the circumstances presented by Brexit to revisit efforts to reform the Human Rights Act. As mentioned above, the act does not directly relate to EU law. However, during its period of membership in the EU, the UK was legally bound by the EU Charter of Fundamental Rights. This Charter overlaps with the ECHR making it politically difficult to weaken the link between the Human Rights Act and the ECHR system, which is a central objective of Conservative critics of the act.
In December 2020, the government established an independent review of the Human Rights Act under the chair of Sir Peter Gross, a former Court of Appeal judge. This review had a relatively narrow responsibility of examining the relationship between UK domestic courts and the ECHR in Strasbourg, as well as assessing the impact of the act on the relationship between UK courts, parliament and the government.
Significantly, the intention of the independent review was that the Human Rights Act should be retained, so it is perhaps unsurprising that the near-600 page long document recommended only modest changes around improving certain aspects of the processes by which the act operated.
Modern bill of rights
Perhaps in anticipation of the limited nature of the recommendations produced by the review, Dominic Raab (appointed as justice secretary in September 2021) simultaneously launched a consultation on government proposals to replace the Human Rights Act with a ‘modern bill of rights’. This consultation document invites submissions in response to 29 questions and implies a degree of openness to different reform options. However, the key premises of the government’s approach to reforming the Act are apparent from the commentary contained in its consultation paper.
Although the government pledges the modern bill of rights will retain all the rights currently protected by the Human Rights Act, there are proposals made that appear to envisage curtailment of these rights in certain circumstances. An assumption is made that the current Human Rights Act is being abused, a charge for which there is little substantive basis beyond tabloid-created hysteria surrounding the outcome of the occasional case decided under the act.
There also seems to be a veiled attempt to distinguish between those deserving and undeserving of the benefit of human rights protections. For example, it is proposed to create a bar to so-called ‘spurious’ claims, although it is not clarified particularly well what would constitute such cases.
References to a desire to prevent human rights considerations frustrating the “deportation of serious criminals and terrorists”, and balancing rights with responsibilities, similarly suggest a desire to curb the scope of protection afforded under the act. Scepticism over the rightful place of the judiciary in enforcing human rights is evident although misplaced, given that the judiciary has no power to override parliament’s legislation irrespective of its implications for rights.
The consultation period runs to March, although it will be several months before the government’s substantive proposals for the replacement of the Human Rights Act emerge. The tone of its consultation, however, suggests that the act as it presently operates is at risk.
It also seems apparent that the government envisages there will be a range of circumstances in which the victims of human rights violations will not be entitled to seek their redress in the courts as a result of it introducing new procedural hurdles to be overcome.
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