The 1998 Human Rights Act came into force just over 20 years ago in October 2000, significantly improving the protection of human rights in common law, statute, EU and international law. Justice Secretary Dominic Raab has confirmed plans to replace it with a UK Bill of Rights.
What the government is proposing is not merely an “update” of the Human Rights Act, as claimed in the 2019 Conservative Party manifesto. Rather, it is a broad view of a fundamental feature of the British Constitution.
Among other things, it will reduce the power of British judges where legislation is incompatible with the European Convention on Human Rights and limit important duties such as the positive duty to protect life. It would also jeopardize the UK’s membership of the European Convention on Human Rights by empowering the British courts and parliament not to comply with rulings of the European Court of Human Rights.
For other democracies, the process of changing such an important feature of the constitution is likely to take years, and will involve constitutional conventions, public consultation, a referendum or special parliamentary majorities. With the government’s current majority, the Human Rights Act can be repealed in less than a year.
The UK is unusual in that it has no codified constitution. Consequently, constitutional change does not follow any established, or legally enforceable, process. The most common method is through the law of parliament – for example, the EU withdrawal law in 2018.
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Before the parliamentary stages, there is usually a lot of debate and consultation. The Human Rights Act itself was preceded by a detailed government consultation document, cross-party agreement between Labor and the Liberal Democrats, and many years of discussion by academics, judges, politicians and journalists.
For the government to submit a previously unpublished 44-page constitutional bill to parliament and conduct the second reading debate the next day – as it does with the Bill of Rights Bill – is unprecedented. The content of the bill will make it much more difficult for people to claim their human rights in the UK. But just as worrying is the government’s authoritarian method of bringing about this constitutional change.
Autocratic approach
The Conservative Party has waged a long campaign against the Human Rights Act. Its replacement was a feature of the 2010 and 2015 election manifestos, and although the Conservatives formed a government in 2015, the repeal did not proceed. a 2014 consultation document and leaked plans in 2015 are remarkably similar to the latest announcement. These include the reaffirmation of parliamentary sovereignty, the UK’s distance from the European Court of Human Rights and the restriction of human rights for various groups, including prisoners and foreign nationals.
During this long campaign, no balanced arguments have been put forward for or against replacing the Human Rights Act with a Bill of Rights. There is no overarching goal, such as ensuring more effective human rights violations, or addressing new challenges such as climate change.
The focus was rather on the pursuit of ideological goals – the restoration of national pride, sovereignty and democracy, and the return to much better times. While such ideological arguments are likely to be popular with sections of the public, they should not be the driving force behind the overhaul of human rights legislation.
The Ministry of Justice’s consultation document for the Bill of Rights refers to a “long, proud and diverse history of freedom”, saying that common law has been “stifled by the current framework for human rights law”. The recent ruling by the European Court of Human Rights that prevented the plane of asylum seekers on their way to Rwanda to take off has played into these themes.
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The government’s approach suggests that those who benefit from the current Human Rights Act will be brought into line with their rights by the new Bill of Rights, reduced or more difficult to access. This includes prisoners, benefit recipients, immigrants and asylum seekers.
The consultation states that lawyers have brought “undeserved” claims that require “significant amounts of taxpayers’ money”, and that national judges have made the law “uncertain”, involved the government in “expensive litigation” and put the public at “additional risk”. . .
Another feature of authoritarianism involves state control of information. It was difficult for the public to access neutral, balanced information explaining the impact of the proposed changes. Even for experts, the 118-page consultation is difficult to understand and full of evidence-based conclusions. The public interest is not mentioned, and it is not clear who will benefit from the proposals.
Do you follow Russia’s example?
The recent increase in populism means that constitutional change in many states is not approached with public interest as a goal. Take Russia as an example. In 2020, Russia amended its constitution and gave its constitutional court the power to overturn rulings of the European Court of Human Rights. Following the invasion of Ukraine, and the exclusion of the Council of Europe in March 2022, its legislature has now voted to end the court’s jurisdiction.
Authoritarian methods of bringing about constitutional change are unbalanced, and are used when there is a risk that formal and balanced methods will not deliver the government’s desired outcome. In short, should the government facilitate a balanced and rigorous debate, there is a risk that the outcome could go either way – as the recent 2016 referendum on EU membership illustrated.
Human rights are about more than sovereignty, nationalism and nostalgia. When it needs to be taken away, it is important that the resources and legitimacy of the state are utilized to make sure everyone understands how the proposed changes are going to affect them. The people of the UK earn much more than they have been given.
