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The Human Rights Act at 22: What next for the landmark legislation?

22 years ago, on 9 November 1998 the Human Rights Act received Royal Assent, incorporating the fundamental rights and freedoms set out in the European Convention on Human Rights (ECHR) into British law. Yet, while the Act has protected Britons’ universal rights since its commencement in October 2000, it has never been universally popular.

Speaking at the time of the Act passing into law, Shadow Attorney General Sir Nicholas Lyell said:

“Although we have opposed aspects of the Bill, we now wish it well and hope that it will be implemented effectively, to the benefit of the citizenry as a whole.”

Despite initial scepticism from some, the Act has become a vital protection for everyone living under its scope. Its articles, amongst other things, safeguard: the right to life; freedom from torture; the right to a fair trial; freedom of expression and the right to free elections.

Thanks to the Human Rights Act and the ECHR, the right for UK citizens to be treated as equals regardless of gender, sexuality, race or age are protected by law.

Under the Human Rights Act, in 2000, the British army was found to have violated the rights of two British servicemen who were dismissed from the army for being gay. This landmark case resulted in a change of UK law and led to gay members of the Armed Forces to be able to be open about their sexuality.

There are countless such examples of the Human Rights Act being a vehicle for positive change, be it uncovering the truth for families of those that lost their life in the Hillsborough tragedy, breaking up modern slavery rings or holding police to account.

However, over the years many within the Conservative party become increasingly hostile to the Human Rights Act. The party of Winston Churchill, who was himself a “founding father” of the Council of Europe, has increasingly made clear its antipathy for European human rights protections and anything that may limit their power post-Brexit, not least in its last two election manifestos.

Cause for concern?

In 2015, the Conservative’s pledged to repeal the Act, while the 2019 manifesto ambiguously committed to “update” it.

All of those currently presiding over the Great Offices of State (the Prime Minister, Chancellor of the Exchequer, Secretary of State for Foreign, Commonwealth and Development Affairs and Secretary of State for the Home Department) have previously expressed their individual disdain for the Act.

In a piece published by the Times in 2014, admittedly prior to becoming Foreign Secretary, Dominic Raab wrote a piece titled: “This charter for criminals deserves the death penalty,”, running the by-line stating: “Replace the Human Rights Act and we can keep Europe out of our courts.”.

Home Secretary Priti Patel is on record as stating the Human Rights Act is a “glaring example of what is going wrong in our country”. While Rishi Sunak, Chancellor of the Exchequer, voted in favour of repealing the Act.

Most worrying of all however, is the disregard for the Human Rights Act and the protections it affords shown by the current Prime Minister. Boris Johnson has continually pursued legislation incompatible with the Act.

For example, the Overseas Operations (Service Personnel and Veterans) Bill has been heavily criticised at home and abroad, with opponents saying it will effectively “decriminalise torture”. Alistair Carmichael, Liberal Democrat Spokesperson for Home Affairs wrote for the Independent:

“Torture has been illegal in the UK for over 300 years, and rightly so. It is abhorrent and should have no place in contemporary society…. the government is giving itself wide-ranging draconian powers to block prosecutions for torture offences.”

Nearly a dozen UN Special Rapporteurs and Independent Experts called on the UK Parliament to reject the Overseas Operations Bill, stating it would introduce impunity to war crimes, with the official statement saying:

“this bill undermines the absolute and non-derogable nature of the prohibition of torture and violates human rights law, as well as international criminal and humanitarian law”

Pursuing the Overseas Operations Bill imposes a duty on the secretary of state to consider derogating from the European Convention on Human Rights (ECHR) and by extension, the Human Rights Act.

This is what seems so dangerous, the current willingness to effectively ‘opt out’ of the Act when it is viewed as getting in the way. In September 2020, it was widely reported in the press that Prime Minister Boris Johnson was “planning to opt out of parts of the Human Rights Act” to prevent the legislation being used to stop deportations of asylum seekers.

SNP Shadow Spokesperson for Home Affairs and Justice, Joanna Cherry, on news of the government considering breaking international law through a clause in the controversial Internal Market Bill, said:

“Tory threats to opt out of the UK’s ECHR obligations aren’t new and their refusal to guarantee domestic enforceability of human rights is a sticking point in the EU negotiations. So, we shouldn’t be surprised by this despite their protestations to the contrary.”

Cause for hope?

Yet Joanna Cherry touched on an important point; any indication of watering down or reneging on human rights protections has been met with complete resistance on the side of the EU in Brexit negotiations.

Speaking to Times Radio, UK Justice Secretary Robert Buckland QC conceded that he planned to look at the Human Rights Act “carefully”, but rubbished claims that the ECHR is as risk, saying:

“the idea that we’re going to leave the convention is for the birds. You know, it was British Conservative lawyers who wrote the damn thing back in 1950…It is a badge of honour for this country that we did that. Yes there have been moments when we have had disagreements and clashes about aspects of its interpretation, but you know there is a wide margin of appreciation that allows member states, Britain, France, other countries, to make their own laws which give us a huge amount of freedom.”

While the ECHR remains intact, Britons will have access to the European Court of Human Rights (ECtHR), which exists to safeguard the rights set out in the Convention. However, this process is long winded and expensive, the Human Rights Act allows the rights guaranteed by the ECHR to be enforced in UK courts.

Prior to 1998, it took on average five years to get an action into the European Court of Human Rights once all domestic remedies have been exhausted and cost an average of £30,000. A Home Office paper titled Rights Brought Home: The Human Rights Bill states:

“Bringing these rights home will mean that the British people will be able to argue for their rights in the British courts – without this inordinate delay and cost.”

The same paper also argues that by internalising these judicial decisions creates a culture of rights in the UK.

However, despite being a long-time critic of the Human Rights Act, it does appear if Prime Minister Boris Johnson is willing to protect it in return for ensuring future security ties with the EU.

In October 2020, EU sources close to negotiations stated both sides agreed in principle that any trade and security deal would include a commitment by the UK government not to “materially alter the spirit” of the Human Rights Act.

Either party would have the right to suspend or terminate the agreement if there were serious concerns about the protection of fundamental rights and the rule of law.

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