The Human Rights Act 1998 came into force just over 20 years ago, in October 2000, significantly improving the protection of human rights under common law, statute, EU law and international law. Now Justice Minister Dominic Raab has confirmed plans to replace it with a UK Bill of Rights.
What the government is proposing is not just an “upgrade” of the Human Rights Act, as the 2019 Conservative Party manifesto claims. On the contrary, it is a massive revision of a fundamental feature of the British constitution.
Among other things, it would reduce the powers of British judges in cases where the law is incompatible with the European Convention on Human Rights and limit important duties such as the positive duty to protect life. It would also jeopardize the UK’s membership of the European Convention on Human Rights by empowering British courts and parliament to disobey decisions of the European Court of Human Rights.
For other democracies, the process of changing such an important part of the constitution is likely to take years and will involve constitutional conventions, public consultations, a referendum, or a special parliamentary majority. With the current majority in government, the Human Rights Act could be repealed in less than a year.
The UK is unusual in that it does not have a codified constitution. As a result, constitutional changes do not follow an established or legally enforceable process. The most common method is through an act of parliament, such as the 2018 EU Withdrawal Act.
Serious debates and consultations usually take place before parliamentary stages. The Human Rights Act itself was preceded by a detailed government consultation paper, a cross-party agreement between Labor and the Liberal Democrats, and years of discussions among scholars, judges, politicians and journalists.
For the government, bringing a previously unpublished 44-page constitutional bill into Parliament and holding a second reading debate the next day – as happens with the Bill of Rights bill – is unprecedented. The essence of the bill will significantly complicate the protection of human rights in the UK. But no less worrisome is the government’s authoritarian method of achieving this constitutional amendment.
The Conservative Party has been waging a lengthy campaign against the Human Rights Act. His replacement was a feature of the 2010 and 2015 election manifestos, and although the Conservatives formed a government in 2015, the repeal never materialised. The 2014 consultation paper and leaked plans for 2015 are very similar to the last announcement. These include restoring parliamentary sovereignty, distancing the UK from the European Court of Human Rights, and limiting the human rights of various groups, including prisoners and foreign nationals.
Throughout this long campaign, no balanced argument has been presented for or against replacing the Human Rights Act with a bill of rights. There is no overriding goal, such as providing better remedies for human rights violations or addressing emerging issues such as climate change.
Instead, the focus was on achieving ideological goals – restoring national pride, sovereignty and democracy and returning to much better times. While such ideological arguments are likely to be popular with part of the population, they should not be the driving force behind the revision of human rights law.
A DOJ Bill of Rights consultation paper mentions “a long, proud and varied history of liberty” and states that the common law is “stifled by the existing human rights legal framework”. The recent decision of the European Court of Human Rights, which blocked the takeoff of an asylum seekers’ plane bound for Rwanda, played a role in these themes.
The government’s approach is that those who benefit from the current Human Rights Act will be brought into line with the new bill of rights, with their rights limited or difficult to access. This includes prisoners, welfare recipients, immigrants and asylum seekers.
The consultation said that lawyers had filed “baseless” claims demanding “substantial amounts of taxpayer money” and that national judges had rendered the law “uncertain”, involved the government in “costly litigation” and exposed the public to “additional risk”. .
Another hallmark of authoritarianism is state control over information. The public found it difficult to access neutral, balanced information explaining the impact of the proposed changes. Even for experts, the 118-page consultation is difficult to understand and full of non-evidence-based conclusions. There is no mention of public interest, and it is not clear who will benefit from these proposals.
Following the example of Russia?
The recent rise in populism means that in many states constitutional change is not seen as a public interest goal. Take an example from Russia. In 2020, Russia amended its constitution to give its constitutional court the power to overturn decisions of the European Court of Human Rights. After Ukraine was invaded and expelled from the Council of Europe in March 2022, its legislature voted to end the court’s jurisdiction.
Authoritarian methods of achieving constitutional change are unbalanced and are used when there is a risk that formal and balanced methods will not bring the desired result of the government. In short, if the government promotes a balanced and tough debate, there is a risk that the outcome could be anything, as the closed 2016 referendum on EU membership showed.
Human rights are more than sovereignty, nationalism and nostalgia. When they need to be removed, it is important to use the resources and legitimacy of the state to make sure everyone understands how the proposed changes will affect them. The people of Great Britain deserve much more than what is given to them.