The threat to our human rights: The repeal of the Human Rights Act 1998
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Abstract
Human rights were introduced into the United Kingdom law over two decades ago. They were, it was said, brought home. The Human Rights Act 1998 (HRA) created binding and justiciable human rights for everyone within the jurisdiction of the country. UK courts became the venues for arguments based on human rights for the very first time. The HRA gave effect within UK law to the Council of Europe’s European Convention on Human Rights 1950 (ECHR). Human rights were brought home in the sense that British lawyers and politicians played an important part in developing and writing the ECHR. The original reasons put forward in 1997 in favour of the incorporation of the ECHR into UK law have stood the test of time. Perhaps, the most important was the desirability of making the rights within the treaty directly accessible to everyone within the jurisdiction of the UK. The cost in resources and time of taking a case to the European Court of Human Rights (ECtHR) in Strasbourg would generally be greatly reduced where human rights were arguable in the UK courts. Human rights would become a part of the UK law and jurisprudence, shaped by British judges, and available to everyone. This is what has happened. The HRA gives effect to the rights in the ECHR by way of a nuanced and considered balance between differing and at times competing considerations. Central amongst them are the human rights of individuals and the UK’s public interest, and the identity and particularities of the UK and pan-European human rights jurisprudence. Further, the HRA respects Parliamentary sovereignty whilst allowing the courts to consider and adjudge legislation and the actions of public authorities, including the Government itself. The system of human rights protection created by the HRA has been a success, and is widely considered as such. Cases where human rights violations have been found include where mentally incapacitated persons have been deprived of liberty without authorisation, where a policy of the blanket retention of innocent people’s DNA has been followed and where there was opacity over the reviewability of life sentences in England and Wales. Regrettably, the repeal of the HRA appears imminent and with it the delicate balance of considerations it created will come to an end. The Johnson Government’s plan for a British Bill of Rights to replace it was intimated in the Queen’s speech on 10 May 2022. The Government’s arguments and proposals for a British Bill of Rights are set out in broad terms in a Consultation Paper published in March 2022. It follows in time, but not in substance, the Government’s own independent review of the operation of human rights law in the UK. The Government is set on addressing the problems it perceives with the law in spite of the Review concluding that the law was in general working well, and in the face of widespread objection and concern by both governmental and non-governmental organisations. There are a number of reasons why the proposed changes to the system of human rights protection proposed are unwelcome. They are linked by the fact that the amendments to the law will lessen the current level of human rights protection. Notably, this will occur not through a reduction in the number of applicable rights but instead through changes to the procedures and rules governing how they may be vindicated. The important balances under the HRA will accordingly be tilted in favour of the Government and the state at the expense of the individual and the courts.