Two years since the government returned to office promising to “overhaul” the Human Rights Act, the wheels of reform are in motion. An independent review into the act was published in December, and with it came a dramatically more radical government document that floats substantial changes. Dominic Raab, the hardline justice secretary, has long campaigned to replace the HRA with a “British Bill of Rights”—widely understood to be a right-wing substitute for the status quo—and appears to be the driving force. But how might such a Bill of Rights differ from what we have now? What are the risks? And will ordinary people who have benefitted from the HRA be left exposed?
In seeking to answer these questions I spoke to around a dozen politicians, leading QCs and ex-judges, including two former presidents of the UK Supreme Court. Reactions ranged from the wary to the downright panicked.
In the view of Jonathan Jones, ex-head of the Government Legal Service who resigned over the government’s proposals to break international law, “the whole thing is designed to make it more difficult for people to enforce their rights in the UK.” For Brenda Hale, the former head of the Supreme Court who delivered the 2019 judgment overturning the prorogation of parliament, “I can understand the reasons why the independent review of the Human Rights Act made the very limited recommendations that it made. But I find it more difficult to understand the need for the much more radical proposals which the government is making.” Hale is a careful speaker. Stressing that she cannot form a definitive view until she has seen the final recommendations, she warns there are “always dangers in tinkering.”
Others are less diplomatic. For Francesca Klug, who advised New Labour on the drafting of the HRA, the government is set on a “mauling” of our human rights laws. Shami Chakrabarti, former director of Liberty and later shadow attorney general, says it is seeking to pull off the “Trumpian trick of inverting rights to the benefit of the executive.”
Yet the HRA is a complicated piece of legislation and no doubt improvements are possible. Passed by the Blair government in 1998, it sought to enshrine the European Convention on Human Rights in domestic law: when a party had a complaint, they would be able to enforce their rights in the UK rather than having to travel to Strasbourg. The convention itself binds all members of the Council of Europe, which has nothing to do with the European Union. Codifying the rights to life, freedom from torture and slavery and other absolute protections, along with qualified rights such as freedom of expression, it was drafted with the help of British lawyers and had the full-throated support of Winston Churchill.
So that is the current model. Yet it is one that critics say is intolerable. The convention, they argue, has developed beyond anything envisioned by its founders and now constrains the legitimate democratic decisions of its signatories. The HRA compounds the problem, the argument runs, by empowering British judges to change legislation that conflicts with their interpretation of human rights law, undermining the sovereignty of parliament. Perhaps the most persuasive critic of the framework is the former Supreme Court judge Jonathan Sumption, whose 2019 BBC Reith lectures helped set the terms of the current debate. But there are opponents across the media and political landscape.
The British Bill of Rights, replacing the HRA, has been a passion project for a faction of the Conservative Party since David Cameron was opposition leader. Theresa May lent it her support as home secretary, when she used her platform at Tory conference falsely to claim the HRA prevented the deportation of an illegal immigrant because he had a pet cat.
The tabloids have kept up a constant drumbeat, plastering “undeserving” claimants over their front pages to stoke public anger. Newspapers have their own stake in repeal of the act, having often fallen foul of individuals’ right to privacy through their publication of scandalous gossip and—as in the recent dispute between Meghan Markle and the Mail on Sunday—private correspondence.
This is the background to the government’s manifesto pledge and its decision to commission an independent review. When the review recommended only minor changes, it took matters into its own hands, publishing a paper consulting on changes never mentioned by the independent panel. “The government has concluded it’s too lily-livered and wants to go further,” is Jones’s view. “The intended impact is that it will make it more difficult to bring a claim. And it will make it more likely that claims will fail.”
It does this by floating the introduction of a permission stage for any challenge—theoretically to weed out “frivolous or spurious” claims. By making it tougher to have your day in court in the first place, “it may be making the calculation that actually a lot of people will just give up—if either they don’t get permission, or their claims fail because of the other changes which are proposed.”
For David Neuberger, Supreme Court president between 2012 and 2017, “you’ve very much got to look and see what is actually proposed… but it seems to me to be a fundamental proposition that, if you give people rights, they must have the ability to enforce those rights. Otherwise, you’re into those countries which are really tyrannies, but have wonderful sounding constitutions which are completely meaningless.
“There is force in the point that it’s better to refuse people rights than to give them rights which they can’t enforce. So anything that operates as a fetter to stop people going to court, or to make it more difficult to go to court, has to be looked at very carefully and critically.”
Alongside this are proposals that would see UK courts encouraged to take a narrower interpretation of the rights in the convention, and to correct an “over-reliance on the Strasbourg case law” when deciding cases. While the government does not propose withdrawal from the convention itself, it is clearly the case that rights are only valuable to the extent they are applied and enforced.
Dominic Raab’s scheme will hopefully collapse under the weight of its own contradictions
But rather than being alarming, it may be more accurate to describe the government’s agenda as puzzling. The consensus across most of my conversations was that the present settlement works smoothly—and certainly does not encroach on the power of the legislature.
“The Human Rights Act was very carefully designed to respect the fundamental principle of the UK constitution, which is the sovereignty of parliament,” says Hale when I raise this point. “Many other constitutional documents elsewhere in the world allow the courts to strike down acts of the legislature which are incompatible with the fundamental rights. The Human Rights Act does not.” Accusations that judges are voiding primary legislation because it falls foul of the convention are simply false. “If a provision in an act of parliament is incompatible with a convention right, all [the courts] can do is make a declaration to that effect.” It is then up to parliament to decide what it does next (it virtually always decides to amend the legislation).
It is true that the courts are empowered to interpret legislation to comply with convention rights, which can involve a conceptual reframing of certain provisions. But this is a task they undertake only rarely and, crucially, it is one they have been instructed to carry out by elected lawmakers: the Human Rights Act was passed by parliament. It is difficult to see how a court can usurp the role of the legislature by following its instructions.
So much criticism of the HRA is, at best, wrongheaded. But perhaps most baffling are the unintended consequences that could flow from the government’s proposals. The intuitive reading for progressives is that they are part of the nationalist populist project that delivered Brexit: the government is continuing to wage its war on the elite and anything which feels European. For Klug, we are seeing “the next step in ‘taking back control.’”
Yet the proposals could result in precisely the reverse, because if the UK courts are instructed to take a more restrictive approach to the convention rights, then the result must be that more cases end up in Strasbourg, which remains the final arbiter. This will mean more cases going against the UK in a foreign court—a difficult sell for the government, to put it mildly. It does not take a huge imaginative leap to see this being used as a pretext to withdraw from the convention altogether.
The hope must be that Raab’s scheme collapses under the weight of its own contradictions. For Neuberger, “it’s quite tempting for supporters of human rights to say that whatever is proposed is outrageous and that the government’s killing human rights, and in many ways that’s the sort of reaction the government quite welcomes. On the other hand, when you finally see their proposals, they may be quite moderate. I think the government is quite restricted in what they can do.” But as Jones puts it: “we have to assume it’s intended to have a significant impact. Otherwise, why do it?”
It is important to look at the government’s agenda in the round. Coming alongside legislation that would reform judicial review—which empowers citizens to challenge the decisions of public bodies, including on human rights grounds—along with draconian restrictions on the right to protest, there is a pattern of disempowering individuals to the benefit of the governing party. And one of the few welcome proposals from the government—to strengthen the right to trial by jury—risks being undermined by a willingness to stoke public anger over verdicts it disagrees with: witness attorney general Suella Braverman’s hostile reaction to the acquittal of the “Colston Four.”
Neuberger says that “any sensible person concerned about… individual rights and the liberty of the subject… will be wary about proposed changes to the law in areas such as judicial review and human rights. There is always room for improvements to the law, and one has to be careful not to condemn a proposed change simply because it comes from a politician you don’t like or because it’s part of a set of proposals which you don’t like… However, there is real force in the adage that the price of liberty is eternal vigilance.”
After all, the act is “not really there principally for terrorists, or ‘foreigners,’ or whatever,” says Hale. “It is there for everybody, to ensure that they are treated with proper respect and dignity.” Away from high constitutional principle, there will be ordinary people who have benefitted from the Human Rights Act and wonder why it may now be taken away from them.
