By Jess Woodburn
edited by Ollie Lycett (Economics editor)
The Human Rights Act (1999) is arguably the greatest constitutional achievement of any government to instil an effective check on executive power. The HRA directly incorporated the European Convention of Human Rights into UK Law; meaning that anyone can seek its protection without needing to travel to Strasbourg, France. This, therefore, makes the protection of our human rights accessible to everyone, regardless of wealth.
Since 2010, the implementation of a British Bill of Rights, as a replacement for the Human Rights Act, has consistently featured in the manifesto of the Conservative Party. Their 2019 manifesto incorporated a pledge to “update” the Human Rights Act, and not to replace a fundamental component of the UK Constitution.
The Conservatives’ pledge to “update” this act is ambiguous, and may reflect a desire only to make slight revisions, or perhaps even add new rights – it is an uncertainty. However, as it was a policy that featured within the manifesto upon which the Conservatives were elected, the Lords cannot subject the bill to “wrecking” amendments and are equally unable to block the bill as a consequence of the Salisbury Convention. As the government will likely be reluctant to hold a referendum concerning the implementation of a British Bill of Rights, there are less hurdles for them to pass such legislation.
In 2021, the UK Government published the Independent Human Rights Act Review (IHRAR) to conduct a 10 month inquiry into the Human Rights Act, to consider whether the document needs to change. The review, published by a body of experts, included recommendations to improve the operation of the HRA. Moreover, the Joint Committee on Human Rights noted that a majority are in favour of keeping the HRA largely unchanged, and are opposed to the introduction of a new Bill of Rights. However, within the same month that the IHRAR published their report, the UK Government published a consultation paper – Human Rights Act Reform: A Modern Bill of Rights, which opposes the recommendations of the government appointed experts.
A change of such fundamental significance to our constitution should involve public consultations, as well as a referendum. This is not a mere “update” this is a whole revision.
A “Permission Stage”
The proposed British Bill of Rights include adding a Permission Stage within the court process; requiring individuals to provide evidence that they have suffered a significant disadvantage before their claim can go ahead.
Reportedly, this is designed as a means of increasing the efficiency with which taxpayers’ money is expended. However, adding more obstacles for individuals seeking to assert their human rights does not fulfil the Conservatives objectives of “restoring a sharper focus on protecting fundamental rights”, outlined within their impact assessment.
The government asserts that introducing this stage will remove “trivial cases”, however the ambiguous nature of such a definition will mean that distinguishing between such cases and ones of genuine origin is likely to be a point of great controversy.
Deportation
Section 20 of the Bill of Rights enacts a limit on the Court's power to allow appeals against deportation, in respect of a foreign criminal. This, therefore, allows the government to deport individuals from the UK, and erodes the power of the individual.
The right to family life could therefore be restricted, and for a parent or individual to evade deportation, they will need to prove that their child or dependent would come to unavoidable harm.
Freedom of Speech once again restricted
Under Section 4 of Dominic Raab’s Bill of Rights, Freedom of Speech will no longer apply to: those in criminal proceedings; or to the determination of any question as to whether a person is entitled to enter or remain in the United Kingdom, or a person’s citizenship. The right of Freedom of Speech will, also, not be applicable to any question on whether a provision of primary or subordinate legislation, that creates a criminal offence, is incompatible with a Convention right. For example, Article 2 (the right to life).
The Conservatives are attempting to enhance the power of the executive to deport or revoke individuals’ citizenship within the UK, without facing significant opposition from said individual; and therefore eroding their rights.
Reduction of prisoners’ rights
Section 6 outlines that the courts, when determining the question to which a conventional right has been breached, must give the greatest possible weight to the importance of reducing the risk to the public from persons who have committed offences.
This essentially means that a prisoner's rights can be infringed upon more easily, in the interest of reducing public risk. This can relate to any crimes, not just violent ones. Such erosion of rights should not be an option. Our conventional rights include: the right to life; prohibition of torture; freedom of expression; and prohibition of discrimination, just to name a few. These are the rights in question where the greatest possible weight must be given to reduce the risk to public safety.
Permission required to pursue rights
Under Section 15, no proceedings (outlined in Section 13) can be brought to the court by a person, in relation to an act of a public authority, unless they have gained permission from the court, to bring the case forward.
Section 13 applies to a person who has claimed that a public authority has acted, or proposes to act, in a way which is incompatible with a conventional right, regarding Section 12(1). Section 12(1) regards a public authority acting in a way which is incompatible with Conventional rights, which means that any individual seeking to assert a case of Judicial Review (where the court decides whether the government or a minister has acted ultra vires - a fancy word for saying they have acted beyond their powers), must first gain permission from the court before they can bring it forward.
This again adds more hurdles to the judicial system, weakening our ability to protect our human rights, while also allowing an extra hurdle before the government can be scrutinised and held to account for their policies.
In summary…
The Conservatives are taking steps to enhance the power of the executive, and are attempting to weaken the power of the right to freedom of speech, by complicating the way in which governments can be held to account, when they have acted ultra vires.
The rights of prisoners are set to be eroded, by giving greater weight to the reduction of public risk. With few securities outlined in this bill, there is little to stop the executive from infringing upon vital rights with regards to prisoners.
Overall, the government is attempting to make themselves more powerful, limiting the ability of individuals to assert their rights.
How far are you willing to let them go before you say enough is enough?
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