Joseph Kelen outlines Society of Labour Lawyers (SLL)’s response to the governments plans to ‘update’ the Human Rights Act. You can read SLL’s report in full here.
The introduction of the Human Rights Act (HRA) was a pivotal achievement of the Labour government. For the first time in UK history individuals’ rights could be found in a single document, allowing us to challenge government abuse without relying on notional ‘common-law’ rights which even Lady Hale, the former head of the Supreme Court, called “inherently contestable.”
In an attempt to undermine this achievement, the government has begun a process questioning these rights’ extent, clearly seeing them as a threat to acknowledged abuses of executive power. Despite an independent review led by a former Court of Appeal judge (whose position made him perfectly placed to notice genuine issues with the HRA) arguing for little to no change, the government has found a sabre-tooth tiger in a chihuahua’s shadow, demanding a far-reaching overhaul of the act’s ‘abuses’ in a recent consultation document.
This grotesque spin is based on a clear failure to read the report’s actual recommendations. This is so blatant that the chair of the independent review himself suggested the government’s ‘response’ is an entirely unrelated document, whose reforms bear little to no relation to the minor changes recommended. In reality, the ‘response’ appears to have been pre-meditated, sections written years ago whilst Dominic Raab (the person spearheading the reforms) was a junior Justice minister. In a situation of such obvious pre-judgment it would be a prime example of an Article 6 fair trial violation, the Deputy Prime Minister announced 8 weeks before the report was published that the HRA was so abusive it must be overhauled. You couldn’t make this up.
The hatchet job the government clearly intends to pursue is both outrageous and utterly unnecessary. The government report seeks to “empower domestic courts to apply human rights in the UK context” and “reduce our reliance on Strasbourg case law”. This is already the case. The European Convention on Human Rights does not purport to create a single regime across all member states: individual countries are offered a “margin of appreciation” to secure Convention Rights in a domestic setting. The HRA’s aim: to “bring rights home”, is exactly what’s happened. UK courts are not even bound by European Court of Human Rights (ECtHR) judgments. Indeed, the court’s President, Judge Robert Spano, noted that only 1 in every 1,000 cases brought before them comes from the UK. When considered per 10,000 inhabitants, that’s the lowest for any signatory country. Why polish a shining pearl?
This deference to UK court decisions is only present because we have dialogue with the ECtHR. The war which the government is proposing, whereby ECtHR judgments are flat out ignored, will only lead to more challenges being brought to the ECtHR, more judgments critical of UK actions by an international court, and less deference to UK differences in human rights protection. This isn’t even hypothetical, it literally happened in the 1970s and 80s, so often that the HRA was introduced in 1998 to stop the UK from having adverse international rulings brought against them. The government’s suggestion that courts ignore ECtHR jurisprudence to develop their own separate rights will in practice lead to the same outcome.
More broadly, the consultation appears to present questions that are biased, question-begging or vague, to generate answers which would justify highly regressive legislation. In particular, the government proposes a wholesale attack on procedural protections offered to individuals who have suffered violations by the government. Attempts to raise the level of injury that individuals must reach before they can bring a claim is clearly intended to have a chilling effect on would-be claimants. This is similar to government attempts to prevent human rights from being a defence to deportation orders, which is already only successful in around 2% of all cases. There is an obvious need to maintain this protection in “very compelling circumstances”, something which the court already requires to be met before a claim is successful.
The most outrageous suggestion, however, is the attempt to limit the court’s ability to correct executive and legislative failures, by reducing the power of courts to quash government legislation, and preventing them from reading parliamentary legislation in line with the HRA. The power to quash government legislation is an incredibly important part of the judiciary’s constitutional role, given that Parliament has only struck down 1 in every 100,000 of this type of order since 1950. The courts therefore play a pivotal role in reviewing and questioning a vast swathe of government power that would otherwise go unchecked.
Similarly, significantly reducing the court's power to read legislation in line with the HRA will mostly impact legislation that existed prior to the Act’s commencement, which parliament did not wish to expend great effort altering themselves. If courts lack the power to interpret such legislation in line with the HRA, more violations will instead be found, both at a domestic level and in the ECtHR. There will therefore be more, not less, intrusion into parliament’s sovereignty.
In an attempt to pretend this is a “reform” and not a reduction in human rights protection, the consultation suggests the addition of two new rights: the first is to protect trial by jury, a right which is only offered in less than 1% of all criminal cases, and is much more threatened by current government proposals than the ECtHR. The second is to increase protection of freedom of expression over the right to privacy, a proposal that appears to come as much from British tabloids' desire to publish hate speech as it does from any genuine principle.
The consultation is a clear example of the authoritarian tendencies of Boris Johnson’s conservative government. At a time when liberties are being defended with blood and steel in Ukraine, in the UK they are being slowly chipped away. The government cannot be permitted to get away with this without as big a ruckus as the Labour Party can bring.
Joseph Kelen is Secretary for Junior Labour Lawyers. He currently works as a Public International Lawyer, and is completing an LLM at Harvard Law School. He can be found on LinkedIn here.