Why UK approach to replacing Human Rights Act is just as worrying as replacement itself

Queen Mary University of London

The Human Rights Act 1998 came into force just over 20 years ago in October 2000, vastly improving protections for human rights in common law, statute, EU and international law. Now, 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” to the Human Rights Act, as claimed in the 2019 Conservative Party manifesto. It is, instead, a wholesale revision of a fundamental feature of the UK constitution.

Among other things, it will reduce the power of UK 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 will also place the UK’s membership of the European Convention on Human Rights in jeopardy by empowering UK courts and parliament to not comply with judgments of the European Court of Human Rights.

For other democracies, the process to change such an important feature of the constitution would likely take years, and would involve constitutional conventions, public consultation, a referendum or special parliamentary majorities. With the government’s current majority, the Human Rights Act could be repealed in less than a year.

The UK is unusual in that it has no codified constitution. As a result, constitutional change follows no set, or legally enforceable, process. The most usual method is via act of parliament – for example, the EU Withdrawal Act in 2018.

Before the parliamentary stages, there is usually considerable debate and consultation. The Human Rights Act itself was preceded by a detailed government consultation paper, cross-party agreement between Labour and the Liberal Democrats, and many years of discussion by academics, judges, politicians and journalists.

For the government to introduce into parliament a previously unpublished 44-page constitutional bill and have the second reading debate the next day – as it is doing with the bill of rights bill – is unprecedented. The substance of the bill will make it much more difficult for people to claim their human rights in the UK. But equally concerning is the government’s authoritarian method of achieving this constitutional change.

The Conservative Party has waged a long campaign against the Human Rights Act. Replacing it was a feature of 2010 and 2015 election manifestos, and although the Conservatives formed a government in 2015, the repeal did not go ahead. A 2014 consultation paper and leaked plans in 2015 are remarkably similar to the latest announcement. They include the reassertion of parliamentary sovereignty, distancing the UK from the European Court of Human Rights and limiting human rights for various groups including prisoners and foreign nationals.

Throughout this long campaign, no balanced arguments have been presented for or against replacing the Human Rights Act with a bill of rights. There is no overriding objective, such as securing more effective remedies for the violation of human rights, or addressing new challenges such as climate change.

Instead, the focus has been on the pursuit of ideological objectives – 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, these should not be the driving factor behind revamping human rights law.

The Ministry of Justice’s bill of rights consultation paper references a “long, proud and diverse history of freedom”, and says that common law has “been stifled by the current human rights law framework”. The recent judgment by the European Court of Human Rights that blocked the plane of asylum-seekers headed to Rwanda from taking off has played into these themes.

The proposed bill of rights effectively challenges the jurisdiction of the European Court of Human Rights. Ronald Wittek / EPA-EFE

The government’s approach suggests that those who benefit from the current Human Rights Act will be brought into line by the new bill of rights with their rights reduced or made more difficult to access. This includes prisoners, benefit recipients, immigrants and asylum seekers.

The consultation says that lawyers have brought “unmeritorious” claims requiring “substantial amounts of taxpayers’ money”, and that national judges have made the law “uncertain”, engaged the government in “costly litigation” and put the public at “additional risk”.

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