This article by Stephen Clear, Lecturer in Constitutional and Administrative Law, and Public Procurement, at the Law School is republished from The Conversation under a Creative Commons license. Read the original article.
There have long been attempts to “scrap” the Human Rights Act 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently raised concerns that the government could be wavering in its commitment to the act post-Brexit.
The House of Lords’ EU justice sub-committee said in January that it was worried to see the government change the wording of the political declaration it agreed with the EU, which sketches out a non-binding vision for what the UK’s relationship with Europe will look like after Brexit.
In its draft form, the declaration said that the future relationship should incorporate the UK’s “commitment” to the convention. However, by the time the final version was published in November 2018, that had changed to a commitment to “respect the framework” of the convention.
The committee wrote to the government for clarification and received a response from Edward Argar, the parliamentary under-secretary of state for justice, who stated that the government would not repeal or replace the act while Brexit is ongoing but that “it is right that we wait until the process of leaving the EU concludes before considering the matter further”.
Responding publicly, committee chairman Helena Kennedy said that this was a “troubling” reply, noting: “Again and again we are told that the government is committed … but without a concrete commitment”.
Critics of the act say that reforms are needed to “restore” the supremacy of the UK courts, by limiting the interference of the European Court of Human Rights (ECHR) in domestic issues, such as voting rights for prisoners. This has long been a key issue for Conservative governments, which have wanted to ignore Strasbourg rulings. The idea is that the Human Rights Act could be replaced with a “British” bill of rights which would allegedly give the UK more control over the laws it implements.
The most cited criticism is that the act protects terrorists and hate preachers, such as Abu Hamza, who, at a time when he was advocating radical Islam and violence within UK cities, initially could not be deported on grounds that doing so would have contravened his right to freedom from torture.
The successes of human rights laws are less frequently celebrated, however. The act was relied upon by Hillsborough families, and the victims’ right to life, in order to secure a second inquiry. Individuals pursuing their freedom to manifest their religion have used it to enforce their right to wear religious symbols at work. Victims of the Stafford hospital scandal used the law to secure an inquiry, which led to major improvements in accountability and public safety. And it has helped those seeking LGBTQ+ equality, as well as British soldiers in their challenge for improved resources.
Dispelling the myths
The problem is that there are several misconceptions fuelling the drive to change the Human Rights Act. First, the ECHR is unrelated to the EU. But mistaken links between the two are causing misplaced animosity towards the convention. The convention and its related institutions were regularly confused as being part of the EU during the referendum debates. Though the UK is due to leave the EU, it is not leaving – and does not necessarily have to leave – the Council of Europe. The council predates the EU, and has a larger membership (47 member states compared to the EU’s 28). While the EU is concerned with matters such as the single market and free movement of people, the council addresses issues in relation to human rights and the rule of law.
Another point causing problems is the notion that the UK needs to move towards a supposedly “more British” and “less European” understanding of human rights. History tells us that in the aftermath of World War II the convention was actually partly written by the British. It was advocated by Winston Churchill and co-written by Conservative MP David Maxwell-Fyfe.
Britain was not just a supporter of the convention, but a leader in co-drafting the rules, and ensuring greater enforcement at a supranational level, via the European court. Furthermore, the UK was the very first country to ratify the convention in 1951. The irony is that the Conservative party is now questioning the role of human rights when it was the one that drafted the convention in 1950.
Even if the Humans Right Act was reformed or repealed now, the UK would still be subject to the convention as a signatory. UK citizens would still have access to the protections that the convention has introduced.
If the act is truly under threat of repeal, lessons must be learnt from Brexit. There needs to be an open and honest debate about what the act and convention actually do, and what they have achieved.
If, in repealing the act and introducing a “British bill of rights”, the UK leaves the Council of Europe, it could cause a dangerous unravelling of the UK’s constitution, and upset the devolution settlement. It could also remove another layer of international protection for the UK’s constitutional values. To do so at a time when much uncertainty remains (following the UK leaving the EU) would have far reaching consequences for protecting citizens’ rights against the state.