By Mark Elliott
Professor of Public Law, University of Cambridge
This post was originally published on the Public Law for Everyone blog on 23 June 2022 with a different title.
The British Government has announced its intention to repeal the Human Rights Act 1998 and replace it with a new Bill of Rights. What will this mean for human rights protection in the UK? Some things are not changing. The UK will remain part of the European Convention on Human Rights. This has nothing to do with the European Union. The Convention is an international agreement, or ‘treaty’, that the UK (along with many other countries) has agreed to abide by.
As a result, the UK is required by international law to ensure that people in the UK can exercise the rights set out in the Convention. It’s also possible for people in the UK to take cases to the European Court of Human Rights in Strasbourg if they consider their rights have been breached. But under the Human Rights Act — a British law made by the UK Parliament — it’s rarely been necessary for people to take cases to the European Court. That’s because the Human Rights Act gives effect to the European Convention in UK law, and gives British courts extensive powers to protect Convention rights (that is, the rights contained in the European Convention). This means that human rights can usually be enforced by UK courts, without any need to go to the European Court.
So what’s changing? Although the new Bill of Rights protects the same Convention rights as the Human Rights Act, it does so in different — and inferior — ways. It will therefore weaken the protection given to human rights in the UK by reducing the courts’ powers. Here’s an example. Often, Convention rights require the Government to not do things. The Government is required not to ban me from publishing this article, because if it did, that would infringe my right to freedom of expression.
But sometimes Convention rights require the Government to do things. For instance, the European Court says that the right to life sometimes requires positive steps to be taken to protect life: eg the Government, via the police, must sometimes warn people if there is intelligence to suggest their life is in serious danger. When the Convention requires things to be done (rather than not done), we call these ‘positive obligations’. The Bill of Rights, however, will often require UK courts to ignore positive obligations. This means that if someone in the UK wishes to enforce a positive obligation, they will often (once the Bill of Rights replaces the Human Rights Act) have to take their case to the European Court.
Here’s another example. The right to respect for private and family life limits the Government’s power to deport people: if they have an established family life in the UK, it might infringe their right to respect for family life if they are removed to another country. The Bill of Rights will significantly reduce the circumstances in which people with criminal convictions, including those who were subject only to relatively short sentences, can challenge deportations on this ground.
That’s because the Bill says that such challenges will succeed not if the right to respect for family life would be breached, but only if it can be shown that deporting the person would cause ‘extreme harm’ — which means something ‘exceptional’, ‘overwhelming’ and ‘irreversible’. British courts will therefore be powerless to prevent many deportations that would breach the right to family life because they will only be able to intervene if the much higher threshold of ‘extreme harm’ is met. Once again, British courts will be unable to help, and only the European Court will be able to assist. The problem is that many people will be unable (eg for financial reasons) to take their case to that Court.
And now one final example. British courts can’t ‘strike down’ or ignore Acts of Parliament. That’s because the UK Parliament is ‘sovereign’, meaning it can make any laws it likes and that courts can’t stop it from doing so. So what if an Act of Parliament breaches the European Convention? Under the Human Rights Act, this problem rarely arises. That’s because the Act allows — and requires — British courts to interpret Acts of Parliament in line with Convention rights whenever it’s possible to do so. The courts have taken that requirement seriously, meaning that they have usually been able to interpret Acts of Parliament in a way that makes them compatible with the Convention.
Some people complain that that gives judges too much power. But it has ensured that courts can give effect to human rights in most situations: the fact that they can’t strike down legislation that is incompatible with human rights hasn’t mattered much, because they have generally been able to interpret Acts of Parliament in ways that make them compatible with rights. The Bill of Rights, however, takes away that power, meaning that British courts will much more frequently be forced to conclude that Acts of Parliament are incompatible with the Convention rights. In such cases, there’s nothing national courts can do to protect rights unless and until the Government or Parliament changes the law.
The upshot, then, is that while people will continue to have rights under the European Convention, it will be harder for them to enforce them in the UK — under the Bill of Rights, they will more frequently have to look to the European Court instead of national courts. Why is the Government making it harder for people to enforce their rights? It’s important to remember that enforcing human rights also involves holding the Government to account by scrutinising what it’s doing and stopping it from doing things that breach rights. And it’s hard to avoid the conclusion that the current Government does not welcome such scrutiny.
After all, when Parliament stood up to the Government over Brexit, by insisting that the Government should not allow a ‘no-deal Brexit’, the Government unlawfully tried to suspend Parliament. When the Supreme Court intervened to bring that unlawful suspension of Parliament to an end, the Government threatened to limit the courts’ powers. And when the Prime Minister was found to have broken the law by attending a party in breach of Covid regulations, he rewrote the Ministerial Code, removing references from its foreword to the importance of honesty and integrity. The Government, then, appears to dislike being held to account and to dislike arrangements and institutions that enable it to be held to account.
We can now see, then, that the Bill of Rights forms part of a much bigger picture. The Deputy Prime Minister, Dominic Raab, claims that the Bill of Rights is ‘a rights enhancing instrument’. But it’s nothing of the sort. It will in fact weaken human rights protection and, as a result, it will weaken the ability of individuals and courts to hold the Government to account by reference to human rights standards. The real aim of the Bill of Rights is not to enhance human rights protection in the UK: it is to shield from scrutiny on human rights grounds a Government whose authoritarian instincts are increasingly evident.