By Jun Pang, policy and campaigns officer at Liberty.
For the past two decades, the Human Rights Act 1998 (HRA) has enabled individuals to enforce their rights in practice – it is a vital instrument for people to hold power to account and contributed to the development of a human rights-respecting culture in public bodies.
The government is currently consulting on its plans to overhaul the HRA, a process that has been roundly criticised by civil society groups, former ministers, ministers of the devolved nations, and senior members of the judiciary, among others. After hundreds of civil society organisations, including disabled people’s organisations, highlighted the Ministry of Justice’s failure to provide accessible versions to enable disabled people to participate, the government was forced to extend the deadline by six weeks.
While purporting to be a response to the Independent Human Rights Act Review (IHRAR), the government’s consultation far exceeds the independent review’s terms of reference, and many of its proposals lack a sound evidence base. The chair of the independent panel, Sir Peter Gross, has stated that the reforms are “not a response” to his report. IHRAR itself stemmed from a 2019 Conservative party manifesto commitment to simply ‘update’ the HRA – a far cry from the current ‘overhaul’.
Everyone stands to lose from the government’s attack on the HRA, but it is marginalised communities for whom human rights is a crucial way to safeguard their dignity and challenge violations on the part of public bodies, who will be most affected. In turn, the government’s attempts to scapegoat certain people as ‘undeserving’ of human rights is a slippery slope for undermining protections for all.
In the context of wider attacks on accountability and democracy through the Police, Crime, Sentencing and Courts Bill (PCSC Bill), Judicial Review and Courts Bill, and Elections Bill, the overhaul of the HRA should be seen as the summit of the government’s ambitions to make itself untouchable. As civil society organisations, we must resist this divisive narrative and unite in solidarity to save the HRA.
The proposals
Apart from our response to the consultation, Liberty has written an explainer on some of the substantive reforms. The headlines include:
- Erosion of positive obligations: Positive obligations require public bodies to take positive steps to protect people’s human rights. They have enabled bereaved families (such as those whose loved ones died in the Hillsborough disaster or in state custody) to seek justice for their loved ones and survivors of sexual violence such as the victims of John Worboys to hold the police to account over their failures to tackle violence against women and girls. The government is trying to erode positive obligations so the extent of their protections are reduced and so that fewer people are able to access them – an attack on the fact that we all have the same human rights by virtue of being human.
- Removal of strikedown power for secondary legislation: Currently, judges cannot strike down Acts of Parliament that breach human rights. Instead, they can make a ‘declaration of incompatibility’ to inform the government of this fact. On the other hand, judges can strike down secondary legislation, which are lesser-scrutinised laws enacted to give effect to Acts of Parliament. The government is trying to remove this power of the courts, which is highly concerning given its increasing use of secondary legislation since Brexit and throughout the coronavirus pandemic.
- Removing the practical effect of human rights: The government is trying to stop courts from interpreting legislation compatibly with human rights. Without this interpretive obligation, human rights would have limited practical effect. Combined with the proposal to remove courts’ ability to consider the European Court of Human Rights jurisprudence, this will lead to a divergence in rights protections in domestic and international courts, and force more people to take their cases to Strasbourg to secure their rights (provided they can afford the costly and lengthy process of doing so).
- Introduction of a permission stage: The government is trying to introduce a permission stage for human rights claims so that only people who can show they have suffered ‘significant disadvantage’, or whose cases raise issues of ‘overriding public importance’, can bring their cases. But every human rights violation is a serious violation – this proposal will put barriers in the way and make it harder for people to access justice.
- Entrenchment of the hostile environment: The government is trying to expand deportation powers and in doing so, further entrench the hostile environment against migrants.
Uniting in solidarity
The justice secretary looks set to announce his new Bill of Rights at the next Queen’s Speech in May. This is not the first time the HRA has come under attack, but the current political context and parliamentary arithmetic mean there is a significant chance that the government may succeed.
All is not lost, however – the wide-ranging and sustained opposition against the Police, Crime, Sentencing and Courts Bill and the Nationality and Borders Bill should give us hope that it is possible to work in concert to oppose attacks on our human rights. Many civil society organisations have responded to the consultation, expressing criticisms of its divisive framing and flawed and unevidenced proposals, and importantly, highlighting the positive impact of the HRA on individuals and wider communities. The consultation period for the HRA is still open for those who require accessible versions of the document – groups and individuals can request an extension by contacting the Ministry of Justice.
With an eye to the threats ahead, we should go back to basics and return to the origins of the HRA, why it is important, and what it represents: a positive vision for a society in which we might all be able to live safe, happy, and dignified lives, with access to the support we need to thrive and participate in the decisions that affect our lives. Together, and powered by this vision, we can fend off this threat.
