Rights At Risk: The Government’s Plan to Overhaul Human Rights

For the best part of around a decade, the Conservative party has pledged to update the Human Rights Act (HRA). The legislation allowing us to hold those in power to account in an accessible manner in UK courts is now under threat of being weakened. Speaking on the 800th anniversary of the Magna Carta in 2015, then Prime Minister David Cameron mentioned that it was, “time to restore the reputation of human rights, which had been devalued in Britain”. Now, the Government is proposing the ‘Rights Removal Bill’, a piece of legislation that would not just repeal parts of the HRA, but restrict access to justice, remove safeguards that ensure human rights are upheld, and remove positive obligations for the state to actively protect our human rights. Current government plans will limit much of these human rights provisions, leaving millions of the most vulnerable people open to human rights abuse.

The bill, known as the Bill of Rights, is currently going through the House of Commons, seeking the approval of MPs. Far from being a bill that seeks to ‘restore’ human rights, significant concerns have been raised by several human rights and civil society organisations, with Liberty stating, “The proposals to replace the Human Rights Act with a British Bill of Rights aren’t born of goodwill. They are the summit of the Government’s ambitions to rewrite the rules to make itself untouchable”. Consequently, the manner in which this bill has been brought about, as well as its contents, raises questions about its actual intentions and what the Government wants to achieve with it.

Indeed, the premise through which the Rights Removal Bill was introduced was not from a place of concern with existing regulations. In December 2020, the Government launched the Independent Human Rights Act Review (IHRAR) after the 2019 manifesto pledge to ‘update’ legislation. It is therefore questionable that before the IHRAR concluded on their findings, Secretary of Justice Dominic Raab had announced plans to overhaul the HRA. The initial manifesto pledge was to update the HRA, not remove it. Furthermore, upon submission of their findings, in a 580-page report, the IHRAR found no justification for repealing the HRA, mentioning, “there is no substantive case for its repeal or amendment”.

However, the Government ignored much of the findings in the IHRAR report by controversially launching its own consultation in parallel, calling for reform despite conclusions from the IHRAR’s findings, and the Joint Committee on Human Rights (JCHR) which found that the HRA is functioning well. An example can be seen in the consultation paper, the Government explicitly choosing to ignore the IHRAR’s recommendation of not repealing Section 3 of the HRA, instead stating that Section 3 removes power from Parliament. Section 3 of the HRA effectively places an obligation upon judges when considering cases to interpret domestic legislation in a way which is compatible with the European Convention of Human Rights(ECHR). It does not give judges the authority to ignore, disapply, or strike down legislation; they may only issue a declaration of incompatibility(DOI) alerting Parliament to a conflict between the legislation and the UK’s human rights obligations. It is then up to Parliament to amend the legislation. In 2004, judges ruled that Section 23 of the Anti-terrorism, Crime, and Security Act 2001(ATCS), a provision that allowed the detention of foreign nationals without charge, was in breach of article 5; the right to liberty. Parliament later repealed part of the ATCS in 2005, introducing the Prevention of Terrorism Act 2005. Section 3 of the HRA is a vital tool protecting human rights, in a letter to Justice Secretary Dominic Raab, the JCHR mentioned that “the courts are using section 3 appropriately”, consequently, any change to Section 3 is seemingly unnecessary. Rather, the Government’s persistence to repeal a critical part of legislation that enables the public to hold our governments to account is worrying, to say the least. Thus creating causes for concern behind the true intent of the overhaul. Instead of possible issues within the HRA, it seems that plans of reform are driven by ideological arguments to consolidate governmental authority further.

Much of the criticism of the HRA stems from long-standing misconceptions such as the HRA is far too protective of ‘wrong people’. The Conservative Party are also guilty of pushing a narrative that human rights are not fundamental to everyone but must be earned on merit. Controversially in 2011, Theresa May, then Home Secretary, claimed incorrectly that an illegal immigrant could not be deported because of his pet cat due to the HRA. However, the ‘illegal immigrant’ at hand won his case on appeal because the Home Office had ignored its own immigration rules on unmarried couples. The cat mentioned in the case was merely used as evidence of an existing relationship between the unmarried couple, along with witness statements, diaries, and bank statements. Upon her comments, Amnesty International said Mrs May’s comments only fuelled “myths and misconceptions” about the Human Rights Act. Mrs May’s exaggerated comments seemingly attempted to change public opinion, taking focus away from the essence of the legislation. The HRA has been instrumental in establishing justice for victims where the state has failed them, whether it be through the mishandling of investigations, or infringement of privacy.

The proposed bill risks limiting the protection of the rights we currently have. One such proposed change is to restrict the existing positive obligations and preclude them from any further expansion. The HRA places an obligation on public authorities to have a duty of care with respect to human rights, ensuring that they have a proactive in their approach. This includes the duty of the police to properly investigate deaths in suspicious circumstances or to take action when they know a person’s life is at risk, such as in the case of domestic violence. It also allows bereaved families who have been failed by public services, to seek justice, such as in the Hillsborough disaster, which took the lives of 97 football fans due to police failings. The proposed changes could risk the removal of such obligations and will make it more difficult for public bodies to protect rights while making it more difficult for people to challenge when their rights have been violated.

The Rights Removal Bill has not been introduced due to an inherent issue with our human rights, rather ironically, it threatens the very rights people enjoy and deserve. Its flaws are numerous; with such poorly thought-out proposals, the only solution for it is to be scrapped in its entirety. The purpose of human rights is to recognise and protect human dignity, preventing transgression from governments. However, this Conservative Government proposes to introduce a system of unchecked power. The recently passed Judicial Review Act, which makes it harder for people to challenge the Government in court, the Police, Crime, Sentencing and Courts Act, which restricts the right to protest, and the Elections Act, which could prevent millions of people from voting, are all examples of the Government trying to consolidate power and to stifle dissent, with many concerned that we are heading into a Tory autocracy. MEND stands firm against any attempt by the Government to free itself from accountability, and calls for this bill to be scrapped and for all Members of Parliament to reject the bill in its totality.