Why we must defend the Human Rights Act

Does the UK need its own Bill of Rights to replace the Human Rights Act which enacts the measures of the European Convention of Human Rights? As the bill awaits its second reading in the Commons, Pal Luthra of the Amnesty International Hastings & Rye team examines the roots of existing human rights legislation in Europe and the UK and the likely effects of the proposed new bill.

It has become fashionable for establishment politicians to blame the Human Rights Act for their inability and failure to tackle difficult political issues. Leading the attack is Dominic Raab, current justice secretary and deputy prime minister, who wants to “rebalance the system” by making clear “rights come with responsibilities” and to “end the duty of UK courts to take into account the caseload of the Strasbourg Court’” (the European Court of Human Rights – ECtHR).

He aspires to “reassert democratic control over the expansion of human rights – which is a matter for elected lawmakers and parliament.” He wants to replace the Human Rights Act with a UK Bill of Rights .  It seems to me what irks Raab and the rest of the establishment is that the Human Rights Act is an inconvenience and troublesome. It empowers people denied of their rights to challenge the powerful establishment by using the judicial system. Raab and the ruling elite don’t like little people challenging them.

They are supported in their efforts by the right-wing tabloid press, thanks to whose influence many people see the Human Rights Act as an alien and foreign intrusion.

Churchill to the fore

So how did we arrive here? In May 1948, in the aftermath of the Second World War, several prominent European political leaders, including Winston Churchill and Harold MacMillan, agreed to create a European Human Rights Charter. Churchill stated: “We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as the right to form a political opposition. We desire a Court of Justice with adequate sanctions for the implementation of this Charter.”

The European Convention on Human Rights (ECHR) was created in 1950.  One of the key authors was British Conservative MP and lawyer Sir David Maxwell-Fyfe, who had been a prosecutor at the Nuremberg trials. Other important British players involved were Lord Layton, a Liberal Party politician, and Samuel Hoare, a Conservative Home Office under-secretary. It was therefore no surprise that the UK was the first state to sign up for the Convention. Lord McNair, a British legal scholar, became the first president of the European Court of Human Rights in 1959.

One can argue that the ECHR and the  Human Rights Act 1998 (HRA) are as quintessentially British as Winston Churchill.  The HRA, which came into force on 2 October 2000, incorporated into UK law the rights contained in the ECHR. The Act provides legal remedies for the breach of human rights in UK courts, without the need to go to the European Court of Human Rights. It introduced the duty and responsibility of the UK courts to take into account European and international case law.

The most significant factor about the HRA is that these rights and freedoms apply to everyone in the UK, regardless of sex, race, colour, ethnicity, language, religion, political or other opinions, nationality, immigration status, social origin, gender, association with a national minority, property, birth or any other status. But despite the clear benefits of the HRA, there have been repeated threats to remove or repeal the act by successive politicians.

The HRA secures the basic rights expected of a democratic state, including the right to life, freedom of assembly and religion, freedom from torture, the right to a fair trial if accused of an offence, and the right to free and fair elections (see the full list of rights here).

Achievements of the HRA

The HRA has proved instrumental in establishing new rights, such as equal rights for gay couples, and uncovering the truth in scandals such as the police cover-up in the Hillsborough football disaster, negligence by health authorities such as the Mid Staffs NHS Trust, in tackling modern-day slavery, in underpinning the Northern Ireland peace agreement, and in uncovering instances of police negligence such as in the case of the black cab rapist John Worboys.

More than 150 civil society groups have written to prime minister Rishi Sunak urging him to commit to retaining the HRA and rule out its replacement by a British Bill of Rights. The Law Society has called the bill a “lurch backward for British justice” as it “will create an acceptable class of human rights abuses in the United Kingdom”. Sacha Deshmukh, Amnesty International UK’s chief executive, has said: ”Make no mistake – this is not a ‘bill of rights’, it’s a ‘rights removal’ bill.”

The proposed legislation has also been poorly drafted. Liz Truss’s government recognised its failings and rightly binned the idea. But Sunak has moved to bring it back to life – a power grab by a government wanting to insulate itself from the rule of law. Among its detrimental effects it will undermine Northern Ireland’s delicate state of peace and risk the UK’s international standing.

The Bill of Rights, if passed, will make it harder for people to bring human rights claims by introducing a “permission stage”, requiring them to prove that they have suffered a “significant disadvantage”.  Legal experts have observed that the Bill aims at “substantially decoupling the UK’s domestic human rights regime from the Strasbourg system”. For example, it states explicitly that UK courts can depart from the case law of the ECtHR – despite Raab’s commitment that the government has no intention of leaving the ECHR. But the ECtHR and the ECHR are intrinsically linked. And Raab’s commitment is looking shaky – he has since told a parliamentary committee that he would not rule out the possibility of the UK leaving the ECHR in the long term.

Unequal application

The Bill of Rights will not apply to all residents equally. For instance, “foreign criminals” facing deportation will only be able to rely on the defence of their right to family life if their deportation would cause “extreme” harm to a child or dependant – that is, harm that is “exceptional”, “overwhelming” and “irreversible”. It will also close down the right to life defence relied on by Jamaicans with Windrush connections who are threatened with deportation after serving prison sentences.

SNP MP Joanna Cherry, the chair of the Human Rights Joint Select Committee of both Houses of Parliament, stated in the Commons debate: ‘We have completed two in-depth, unanimous cross-party reports, which concluded that the Human Rights Act is working well and does not need to be repealed or replaced. Indeed, that was the conclusion of the independent review, which the Secretary of State commissioned and then ignored.

“When we visited Strasbourg last week, we were told that UK Government Ministers have given repeated assurances that the UK will remain in the ECHR, and I was pleased to hear the Secretary of State reiterate that assurance this morning.

“However, the Prime Minister did make some veiled threats in the opposite direction last week. If we are to stay in the ECHR, it needs to be done with integrity. We cannot pick and choose which convention rights we want to observe or for whom we want to observe them.”

Conservative MP Laura Farris said: “Some of the gravest crimes of the Iraq war were revealed only through recourse to the Human Rights Act, enforced in our domestic courts. I think particularly of the systematic torture of detainees by British soldiers in Basra which was revealed in the Baha Mousa case only because of the Human Rights Act after the Ministry of Defence had declined to investigate.”

The Bill of Rights will effectively give the armed forces a form of domestic judicial immunity (i.e. protection from being sued). It will prevent human rights claims not only by people who believe their rights have been violated by the armed forces, but also block claims by soldiers who have been exposed to harm due to the lack of adequate protective equipment.

“Let us do human rights better”

According to the Democratic Unionist MP Jim Shannon: “If this Government are to reform human rights, they should make the standards higher. Let us do human rights better, rather than water them down. The Human Rights Act should be left as it is. There are many in the United Kingdom of Great Britain and Northern Ireland, and many more across this great world, whom we have a duty to protect. We need the Human Rights Act, not a Bill of Rights, but if we change the Act, we should make it better. I cannot and will not agree to the dilution of the current provisions.”

Conservative MP and King’s Counsel Robert Buckland recently said the Bill of Rights was “worrying” and should be “withdrawn and recast” or else it would get an “absolute mauling” in Parliament because of pointless sections and poor drafting. “I just don’t see what the real purpose of a lot of these clauses is. I hope that the prime minister will be advised that he really needs to cut down or withdraw the bill before more damage is done.”

And Dominic Grieve, the former Conservative attorney general, urged the prime minister: “Don’t distract yourself by going for this project, which is likely to give very little benefit to the Conservative party.”

MP’s view

We in Hastings & Rye Amnesty would like our MP Sally-Ann Hart to listen to the wiser voices in her party and civil society to stand up for the HRA and make representation to the PM to drop the Bill of Rights.

However, when we asked for her views, she made it clear that she supports the new legislation, saying: “Much has changed around the world since the drafting of the European Convention of Human Rights, and I think that it is right that the Prime Minister and the Secretary of State for Justice work with other European nations to ensure legislation is fit for modern day.

“The UK has a long and proud history of freedom, but we can all see that increasingly, human rights laws are being interpreted in more manipulative and innovative ways that often go beyond the original intentions of the architects of the European Convention on Human Rights.

“Therefore, I welcome the Government’s recent consultation on reforming the Human Rights Act and the introduction of the Bill of Rights Bill to ensure our human rights system meets the needs of the society it serves.”

It is very disappointing, but not surprising, that Ms Hart is not standing up for the HRA. She suggests that human rights laws are being interpreted in a manipulative way.  In Britain, we have an independent judiciary and the judges have a duty to interpret legislation without interference from the government. To suggest ‘manipulation’ by judges is an attack on the independence of the judiciary and our independent legal system.

She also states that the Bill of Rights will ensure our human rights system “meets the needs of the society it serves.” The HRA is based on universal human rights principles as set out in the ECHR and the Universal Declaration on Human Rights.

Autocratic and tyrannical states like Belarus, Russia and Iran often argue that their human rights systems meet the needs of their society. To deny the universality of human rights and try to devise a human rights system that suits the need of the political party in power is to go down a very dangerous road.

The Amnesty International Hastings & Rye team can be contacted at: amnestyhastingsrye@gmail.com. See also their Facebook page.

This article was amended by Nick Terdre on 24 January 2023.

Also in: Point of View

« Questions ESCC needs to answer about Queensway Gateway project
Why HBC was wrong to veto the Alexandra Park cycle route »