The alarming implications of a review into the Human Rights Acts post-Brexit

An independent review into the Human Rights Act 1998 (HRA) led by ex-Court of Appeal Judge Sir Peter Gross, that aims to examine the role of judgments handed down by the European Court of Human Rights (ECtHR) in domestic courts, as well as the relationship between the Judiciary, the Executive, and Parliament, is underway, igniting widespread concern over the trajectory of human rights laws post-Brexit. Civil society groups across the UK have signed an open letter to the Prime Minister defending the HRA and some have specifically warned that plans to subvert the Human Rights Act would complicate pathways for individuals seeking justice as the review demonstrates a worrying attempt to evade legal accountability.

The fact that the panel tasked with the review includes members ­– such as Sir Stephen Laws QC– from Policy Exchange, a think tank notorious for its close connections with the Conservative party, support for constitutional reform, and neo-conservative and Islamophobic publications – is an act of blatant partisanship that not only undermines the credibility of an already contested review but intimates the Government’s level of commitment (or lack thereof) to upholding human rights.

The HRA, which embeds the European Convention of Human Rights into British law, has been a longstanding target of the Conservative Party. In both the 2010 and 2015 general elections the Conservative Party proposed to repeal and replace the HRA with a British Bill of Rights. In 2017, the Conservative Party manifesto assured the public that the HRA would not be repealed or replaced whilst Brexit negotiations were taking place, but that they would instead evaluate the human rights legal framework once the UK had left the EU. The 2019 Conservative Manifesto contained a proposal to “update the HRA and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.” After consistent attempts to chip away at the HRA, the materialisation of a review indicates an ongoing and concerning intent to undermine the foundations of democracy and shirk commitment to international legal responsibilities. Meanwhile, the review itself has been criticised as insensitive, untimely and reflective of the Government’s misalignment of priorities as the country is mired in a global health crisis.

Despite the Government’s assurances that the review is not a “full-frontal” attack on the HRA, assessing the framework through which it is enforced is equally concerning and follows the trajectory of the current Government’s hostility to the courts and indications that they wish to remove or restrict judicial scrutiny. Indeed, the review emerges amid attacks from government ministers and supporters on the powers of the judiciary to scrutinise decisions and make rulings which may undermine the wishes of the Government; whether that be regarding the prorogue of Parliament on what was later ruled to be unlawful advice of the Prime Minister, the unlawful handling of PPE contracts during the pandemic, or “activist lawyers” representing the rights of vulnerable people to remain in the country.

Thus, problematising a working relationship between the Parliament, Executive and Judiciary merely cloaks a broader attempt to thwart robust judicial mechanisms. Civil rights group Liberty points out that the UK enjoys a balance of power between the Parliamentary and Judiciary, refuting misguided beliefs over disproportionate judicial powers. Under the HRA “Parliamentary Sovereignty” is still maintained, where Courts are limited to issuing declarations of incompatibility with a Convention Right (as opposed to striking down legislation), which, under Section 4 of the HRA, Parliament can ignore. Reviewing the HRA, which allows Parliament to maintain overarching authority in its ability to pass legislation that contravenes the courts’ position, therefore reveals the Government’s intent to curb the Judiciary’s already limited powers. The consequence of disturbing the balance that the HRA currently guarantees Parliament and the Judiciary – in ensuring accountability and preventing abuses of power – is, therefore, a threat to our democratic framework.

The review further obfuscates the tangible virtues of the HRA and the importance of the Judiciary in upholding civil liberties and legal protections for vulnerable groups widely feared to be eroded post-Brexit. A robust judicial system is central to maintaining the rule of law in ensuring vital protection for citizens against human rights breaches by public authorities or the Government. Cases holding public bodies to account, such as that of Grenfell Tower Inquiry, were facilitated by the HRA, and illustrates how curtailing the HRA’s effectiveness could make it harder for the most vulnerable in our society to access justice. Similarly, considering the Government’s heavy-handed approach to immigration and asylum seekers, curbing the HRA bodes ill for the protections the legislation affords refugees from undue removal from the UK and risks subjecting them to exploitation previously protected by EU laws against trafficking.

Therefore, launching a review of the Human Rights Act amidst a pandemic indicates an indifference to upholding high standards of moral governance that protect civil liberties and ensure accountability. The fact that a framework so integral to democratic legitimacy is under attack raises concerns over human rights laws in our post-Brexit era and points to efforts to restrict access to legal services to those that require it the most. With a view to protecting the country’s most vulnerable, MEND calls on parliamentarians to:

• Commit to preserving human rights and the protection of minority rights, including, but not limited to, the rights to religious slaughter, male circumcision and the wearing of religious dress or symbols as currently enshrined within UK legislation.