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Human Rights Act Reform Consultation


In the Conservative Party’s 2019 general election manifesto, Boris Johnson pledged, in the area of the protection of democracy, to:

“Update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” [1]

Therefore, it comes as no surprise that the government has opened a consultation period, [2] closing on the 19th of April 2022, regarding proposals to enact reforms. Put simply, the government seeks to replace the Human Rights Act 1998 (HRA) with a ‘modern’ Bill of Rights. Whilst this will overhaul the 1998 act, it will change little in terms of the basic principles which the UK signed up to as a part of the original European Convention on Human Rights- such as maintaining the right to a fair trial or the right to life. However as stated in the manifesto it does seek to reverse human rights law being used for ‘wider purposes’, something it claims will “provide greater legal certainty”.


One important consequence of the HRA is that it has secured and strengthened the position of the UK Supreme Court, and it is claimed in the consultation proposals that the new Bill of Rights will further strengthen this, specifically in the area of judicial function. However, it will do this in tandem with the preservation of Parliamentary prerogative in legislative function, strengthening the UK as a whole, whilst maintaining devolved agreements with Scotland, Wales, and Northern Ireland.


The consultation documents outline that the proposed Bill of Rights will continue to protect “substantive” rights protected under the European Convention on Human Rights and the HRA 1998, as well as strengthening some and even adding other new rights. Equally, it seeks to further enable UK courts to apply human rights specifically within a national context, considering common law and traditional judicial practice. Furthermore, it seeks to make clear the interpretation of certain rights by offering guidance in balancing these with wider societal interests. Amongst other factors, it also seeks to ‘protect’ the armed forces against human rights claims lodged for actions taking place abroad, avoiding the uncertainty of applying different rules to an area already covered by the law of armed conflict.


The proposals also restate that the UK history of common law cannot be overlooked. It draws upon the Magna Carta (1215) as an early example of this, which instigated the process of reducing the power of the monarchy, and offering further protections for the population, such as the principle that an individual could not be imprisoned unlawfully. It describes the extension of these, like Somerset v Stewart (1772) where it was ruled that an enslaved person on English soil could not be forcibly removed from the country and sent to Jamaica for sale. [3]


The case for ‘rights’ reform has been developing for a long time. In 1791 Thomas Paine wrote the ‘Rights of Man’. In which he argued that human rights are dependent upon nature, and that they are granted, and therefore can be withdrawn, having no grounding in law. He asserts that a nation should be able to choose its own government, and the role of this is to protect inherent rights. [4] Early in his career, Karl Marx was noted for critique of Paine’s work “[asserting] that all of the rights do not possess equal importance," [5] and Marx argued that man should “be able to transcend to a different level of ‘freedom’, an internal form of freedom." [6] This reflects the distinction, as the government proposals acknowledge, outlined by Isaiah Berlin in ‘Two Concepts of Liberty’ (1958). Berlin describes that throughout history, philosophers have given freedom a vast number of different definitions, but all these can largely be considered to fit into two categories: ‘negative freedom’ (freedom from) and ‘positive freedom’ (freedom to). Negative freedom can largely be considered as freedom from outside entities (this could be the government, or other institutions, etc.). On the other hand, positive freedom is a little more complex, this simply does not reflect an ‘opportunity’, but more so, the ability to do a certain thing. The idea of positive liberty is so ambiguous, that he noted this is especially susceptible to abuse and being misinterpreted by governments seeking to restrict the autonomy of its citizens, by changing and adapting the meaning of ‘freedom.' [7] The government proposals claim that:

“The government will continue this country’s long tradition of protecting people’s rights and freedoms. We are proud of the example shown by the UK in establishing, and then fighting to maintain, a fair, free and tolerant society." [8]

Whilst this may be the stated objective of the proposals, more recent developments have placed limits on civil liberties, particularly in the name of counter-terrorism (Anti-Terrorism, Crime and Security Act (2001), Prevention of Terrorism Act (2005), and the Serious Organised Crime and Police Act (2005)). The human rights organisation, ‘Liberty’ has condemned the proposed changes to the HRA as “a blatant, unashamed power grab." [9] They state that the proposed reforms act as a threat to the means by which those in power can be challenged, noting that the reforms require everyone to receive permission from a judge before they can take the state, or government, to court, something it sees as undermining the rule of law.


The government proposals place much emphasis on ensuring that rights that were signed up to in 1950 in the European Convention on Human Rights continue to be “protected in a way that does not invite abuse, respects areas of public service delivery that should be decided by professionals on the frontline or elected legislators, and commands public confidence”. This reflects the government’s of not letting the HRA continue to be used by the public to make rulings which it perceives to not be beneficial to wider society more widely. Some could, and have, argued that the present position reflects an overly powerful judiciary, especially in light of the 2017 and 2019 ‘Miller’ cases which saw the government challenged in the Supreme Court on their ability to prorogue or close Parliament in the midst of passing EU Withdrawal legislation. This was seen by some proponents of the idea that the judiciary is becoming too powerful as interfering with the democratic will of the public. Advocates of this bill argue that the balance has now tilted too far towards the Courts and that this Bill of Rights should seek to resolve the issue.


One argument in favour of reform to the HRA, aside from the government proposals, is that “the HRA has not ‘become an iconic statement of liberty as in the US’... Since coming into force, it has been publicly attacked repeatedly and rejected by members of government and opposition parties, prominent public figures, and elements of the media." [10] Such arguments have been debated for a long time. In 2008, Jack Straw, former Labour cabinet member and Lord Chancellor under Gordon Brown, stated in a speech that:

“Repealing the Human Rights Act and simply replacing it with a separate Bill of Rights would reduce the margin of appreciation that UK courts enjoy. It would have the effect of restricting the flexibility and the application of balance within the UK courts. So the Conservative claim that replacing the Human Rights Act with a Bill of Rights would give the UK courts a greater 'margin of appreciation' is, I am afraid, the opposite of the truth." [11]

This parallels many criticisms that the HRA reform proposals facing currently. ‘The Law Society’ have outlined their belief that “there is [not] a case for the sweeping reforms proposed…[as these] do not recognise the significant benefits that have been achieved for British society through the HRA by improving access to justice and the rule of law.” [12] They note that they believe these will damage the rule of law, prevent access to justice, remove or reduce rights, as well as leading to more cases being taken to the European Court of Human Rights.


One cannot overlook the vague nature of the proposals as to the specifics of the changes proposed. The consultation documents note the belief “that the structure of the [HRA] is flawed in certain key respects”, which it sees as leading to an over-powerful judiciary, mirroring the role of that in Strasbourg for the EU. This is reflected in the assertion that a ‘rights culture’ has developed based upon the HRA, which undermines personal responsibility and public interest. To return to an earlier note in the proposals that only “substantive” rights will continue to be maintained, reflects the primary issue of the proposed Bill of Rights. Whilst there may be good intentions to this, the inherent vagueness as to its application and the potential implications is a source of concern which is reflected in the number of dissenting opinions, who find it difficult to support something that may prevent institutions, and the state itself, from being held to account in a court of law.


Written by Frances Rigby

 

References:

[1] Conservative Party 2019 Election Manifesto. Available at: https://www.conservatives.com/our-plan/conservative-partymanifesto-2019

[2] ‘Human Rights Act Reform: A modern Bill of Rights- consultation’. Available at: https://www.gov.uk/government/consultations/human-rights-act-reform-a-modern-bill-of-rights/human-rights-act-reform-amodern-bill-of-rights-consultation

[3] ‘Somerset v. Stewart is Ruled’. Available at: https://aaregistry.org/story/somerset-v-stewart-ruled/

[4] British Library: ‘Rights of Man by Thomas Paine’. Available at: https://www.bl.uk/collection-items/rights-of-man-by-thomaspaine

[5] Sichel, B. A. 1972. “Karl Marx and the Rights of Man” Philosophy and Phenomenological Research Vol.32 No.2 355-360, p.355

[6] Ibid. p.359

[7] Philosophize This: Isaiah Berlin, part 1. Available at: https://www.philosophizethis.org/podcast/episode-140-isaiah-berlin-pt-1- pluralism

[8] ‘Human Rights Act Reform: A modern Bill of Rights- consultation’. Available at https://www.gov.uk/government/consultations/human-rights-act-reform-a-modern-bill-of-rights/human-rights-act-reform-amodern-bill-of-rights-consultation

[9] ‘Plans to Reform the Human Rights Act are an Unashamed Power Grab’ Available at: https://www.libertyhumanrights.org.uk/issue/plans-to-reform-the-human-rights-act-are-an-unashamed-power-grab/

[10] Amos, M. 2013 “Transplanting Human Rights Norms: The Case of the United Kingdom’s Human Rights Act” Human Rights Quarterly Vol.35 No.2 386-407, p.399

[11] ‘Speech at JUSTICE/Guardian Public Debate’. Available at: http://www.britishpoliticalspeech.org/speecharchive.htm?speech=301

[12] ‘Human Rights Act reform: a modern bill of rights consultation- Law Society response’. Available at; https://www.lawsociety.org.uk/campaigns/consultation-responses/human-rights-act-reform-a-modern-bill-of-rights-consultationlaw-society-response

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