Government accountability / Human Rights Act and Judicial Review

Explainer: Liberty’s guide to the Government’s plan to ‘overhaul’ the Human Rights Act

Posted on 07 Mar 2022

Justice Secretary Dominic Raab wants to ‘overhaul’ the Human Rights Act and replace it with a ‘British Bill of Rights’. What are his plans and what’s really going on?

In a functioning democracy, people must be able to hold the powerful to account. For more than 20 years, the Human Rights Act has enabled everyone in the UK to do just that and stand up for our rights when public authorities – like the Government and local councils – fall short.

It protects us from misuse of power no matter who we are, and has helped bring a culture of respecting human rights into hospitals, schools, care homes, and housing associations – changing the way thousands of people are treated and supported.

But the Government wants to ‘overhaul’ the Human Rights Act and replace it with a ‘British Bill of Rights’.

So what’s really going on?

What's going on:

The review and the consultation

The Conservative Party’s 2019 election manifesto promised to update the Human Rights Act.

Following their election victory, the Independent Human Rights Act Review (IHRAR) panel worked for nine months, producing a 580-page report – which the Government has largely ignored.

Instead, Justice Secretary Dominic Raab announced an ‘overhaul’ of the HRA before IHRAR had even reported back, and then instead of mulling over the panel’s views, launched a consultation in December 2021 that asks for views on proposals that were explicitly rejected by IHRAR.

IHRAR found no justification for the Government’s attempted ‘overhaul’. So what are Raab’s plans?

The Independent Human Rights Act Review panel worked for nine months, producing a 580-page report – which the Government has largely ignored

What are the Government's plans?

Respecting rights

The Human Rights Act places an obligation on public authorities to respect our rights, and empowers people to enforce them in court if they don’t do so.

For example, these “positive obligations” include:

  • the Armed Forces’ duty of care towards its soldiers
  • the duty on police to properly investigate violent crimes towards women
  • the duty to properly investigate deaths in suspicious circumstances – it was this obligation that enabled the families of those who died as a result of the Hillsborough disaster to establish their loved ones had been unlawfully killed as a result of police failings
  • the duty to protect children from neglect and abuse.

The obligations provide certainty for public authorities and protect all of us, all the time – ensuring our rights are respected and that the vast majority of people never have to start legal cases to enforce them.

But the Government wants to remove these obligations, which will make it more difficult for public bodies to protect rights, and for ordinary people to challenge decisions that violate human rights.

Permission stage for human rights legal claims

Speaking of making it harder to challenge decisions in court, the Government is proposing to add a ‘permission stage’ at the start of human rights legal cases.

This plan will mean that before a case can get off the ground, the person whose rights have been violated will have to show they have faced a “significant disadvantage” caused by the abuse of their rights.

Anyone who brings a human rights claim is already at a significant disadvantage: they are up against the power of a public body. Adding an extra barrier to the courts – and justice – only widens this power divide even more.

The Government says it wants to “reduce the number of human rights-based claims”. A better method would be enhancing access to justice and holding the bodies responsible to account, resulting in a more rights-respecting culture.

It’s likely to also have the opposite effect to what the Government intends

Weakening the link between the European Court of Human Rights and UK courts

The Government says it has no plans to leave the European Convention on Human Rights. Despite this, its proposals will weaken the link between UK law and the European Court, and leave the UK on a collision course with the Convention.

Currently, the Human Rights Act requires UK courts to “take into account” decisions of the European Court of Human Rights.

They don’t have to follow them – which supports the independence of our domestic courts – but they keep broadly in step.

Under the Government plans, the meaning of a right in the Bill of Rights won’t be the same as its meaning in the European Convention on Human Rights and UK judges won’t even have to take European judgments into account.

This will create a great deal of uncertainty for everyone involved in a human rights legal challenge – the person whose rights have been abused, the public authority responsible, and the lawyers on both sides.

It’s likely to also have the opposite effect to what the Government intends, as more people will have to take time-consuming and incredibly expensive trip to the European Court to enforce their human rights that will no longer be protected by UK law.

And if this is the result, only those who can afford to do so will be able to challenge abuse of their rights.

Past behaviour

If a person manages to get to court and prove their rights were breached, the Government is proposing that the damages (money paid as compensation) they receive will be limited depending on their past behaviour.

This is a deeply concerning idea. Everyone has human rights, and everyone’s rights must be protected, even those we disagree with, or dislike, or who have committed crimes in the past.

Human rights are not conditional on ‘good’ behaviour.

When rights are weakened for one section of society, they are weakened for all of us. This toxic narrative must be resisted.

Migrants’ rights

It’s maybe quite telling that the Government has dropped the term ‘human rights’ in favour of a ‘British’ Bill of Rights.

Whereas ‘human’ rights apply to everyone, Raab has written in recent weeks that “all UK citizens should be able to enjoy the same essential protections”, and several of the Government’s proposals revolve around making it harder to challenge deportation – essentially saying that some people (UK citizens) deserve rights and others don’t.

This is one of many cynical Government attempts across multiple pieces of legislation to weaponise people’s attempts to access their rights – which can involve issues of life and death, and/or their right to respect for their family life – in order to justify weakening protections for everyone, but which will evidently have disproportionate effects on the people targeted by such proposals.

When rights are weakened for one section of society, they are weakened for all of us. This toxic narrative must be resisted.

Secondary legislation

Right now, judges can’t strike down Acts of Parliament (known as primary legislation) that breach human rights. Instead, they can make a ‘declaration of incompatibility’, which basically informs the Government that a law goes against human rights, and ministers can essentially choose whether or not to do anything about it.

However, judges can strike down ‘secondary legislation’, which are laws that are made to give effect to the Act of Parliament.

Secondary legislation doesn’t get the same level of Parliamentary debate as primary legislation. As such, this Government has made a habit of creating new laws by secondary legislation to avoid adequate scrutiny of its proposals.

And now, the British Bill of Rights consultation suggests that judges should no longer be able to strike down secondary legislation, but instead only be able to make a declaration of incompatibility. Convenient.

Accountability

The Government’s proposals will undoubtedly weaken rights protections in the UK. And the only people who benefit from weakening rights are those in power.

Right now, that is a government attempting to shut down the ways people are able to hold it to account.

The Judicial Review Bill will make it harder for people to challenge the Government’s actions in court – and make it so even winning your case won’t be worthwhile.

The Policing Bill is an attempt to silence people by criminalising their protests.

Mandatory voter ID could prevent millions of people from exercising their right to vote and having a say in elections.

And the Government is sidelining MP and Peers when making and changing laws, allowing little to no time to debate proposals.

The proposals to replace the Human Rights Act with a British Bill of Rights aren’t born of good will. They are the summit of the Government’s ambitions to rewrite the rules to make itself untouchable.

Liberty and many others are fighting this power grab. We refuse to let the Government become untouchable.

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