Churchill speaks at the first meeting of the Consultative Assembly of the Council of Europe in Strasbourg on August 10, 1949. (Photo by AFP via Getty Images)
Artillery Row

We mustn’t repeal the Human Rights Act

The European Court of Human Rights is a necessary check against authoritarianism

The latest victim of the seemingly-endless culture war being stoked by the Conservative Government has been led up to the gallows for all to see: the Human Rights Act 1998 (HRA). More conceptually, our commitment to human rights as they apply to our society at large. The new Bill of Rights began its second Parliamentary reading on Wednesday, 22 June, introduced by the current Lord Chancellor and Secretary of State for Justice, Dominic Raab. 

Despite what the engorged vein in Raab’s forehead might suggest, it would appear that the faintest whiff of the idea that the Government could undermine those to whom it is held to account, caused all the blood to rush from his head. It must have triggered a tumescence of such magnitude that the only way to deal with this authoritarianism-induced priapism was to draft bona fide legislation repealing the HRA in its entirety. 

Repealing the HRA would make any possible remedy harder to seek

Whilst this has been a work-in-progress since December 2021 at the very least, it follows in quick succession from Home Secretary Priti Patel’s latest fit of apoplexy at the European Court of Human Rights (ECtHR) issuing an Interim Measure which paused the deportation flights — note, not blocking with any finality — of asylum seekers to Rwanda. This country on the one hand was billed by Patel as providing “a ground-breaking partnership that would save lives”, and on the other hand has also been described as a country that violates human rights on a “grand scale”, with Government-sanctioned treatment including torture, life-threatening detention conditions and extrajudicial killings. 

The interplay between the HRA and the European Convention on Human Rights (ECHR) is legally nuanced and complex, and matters are certainly not helped by the political football-ing of the rights guaranteed by each. In brief, the ECHR is an international convention that establishes (on the international plane) some of the most fundamental rights we have come to rely upon and support as individuals and as a State respectively. 

For example, it establishes the freedom from torture and inhuman or degrading treatment (Article 3) at the hands of State officials (and sometimes, private individuals), along with the guarantee of a right to a fair trial (Article 6). It may be worth noting, somewhat ironically, that the UK was not only one of the main architects of the Convention, but also signed it whilst under the Conservative Premiership of Winston Churchill. 

Prior to the introduction of the HRA, it was extremely difficult for any individual who may have suffered a violation of their Convention rights to bring an action: they had to go directly to the ECtHR, which was sometimes referred to as “washing the UK’s dirty linen in public” given the political embarrassment that might ensue. What the introduction of the HRA meant, amongst other things, is that questions pertaining to alleged violations of an individual’s human rights could now be adjudicated upon domestically. In other words, claims could now be made to UK Courts. 

It is an important distinction to make at this stage that what the Bill of Rights would not do is remove the UK as a signatory of the ECHR. Contrary to some of the muddying of waters by various media outlets — including some lawyers who really should know better — our signatory-status to the ECHR was not dependent upon whether or not we “Brexit-ed” (and in fact, is arguably guaranteed within the Brexit deal). So why is the Conservative Government so keen to repeal the HRA? 

The answer is two-fold: firstly, the practical. As Priti Patel’s obnoxious and petulant bleating following the Rwanda debacle made clear, it is anathema to this Government that anybody might get in its way when it comes to enacting policies which detrimentally impact the most disenfranchised, and potentially vulnerable, demographics in society. Repealing the HRA would immediately make any possible remedy harder to seek. 

For example, the Bill of Rights has introduced a new “permission” stage, requiring any applicant to show that they have suffered a “significant disadvantage” as a result of the alleged violation. But this is a misdirection, as judges already have the power to strike out claims that do not reach a “minimum” threshold of severity. 

What the Government has done is reframe and invert this requirement. Requiring the applicant to demonstrate a “significant disadvantage” is to raise the threshold (i.e., minimum vs significant), thus making it more difficult for claims to be lodged at all. This can be seen in the Government’s own press release for the Bill, which asserts that it will “prevent trivial human rights claims from wasting judges’ time and taxpayer money”. 

The phrasing of this also goes to the second answer to “why the repeal”: the political context of the Bill of Rights. Increasingly, we see “human rights” as a tool to be used to stoke division between “us and them”. Often, “foreign criminals” that we are allegedly unable to deport are presented as the crystallisation of the bogeyman that is human rights. They’re coming over here and wasting our taxpayer money, but this Bill of Rights is here to finally reclaim our sov-run-ty from those pesky judges in the ECtHR. 

The rest of the world looks on, embarrassed on our behalf

The Bill goes to great pains to try to establish the principle of sovereignty reclamation in law, but this is wholly unnecessary, and speaks to the highly politicised nature of this entire affair. Section 3(a) of the Bill expressly states that any UK Court “may not adopt an interpretation of the [Convention] right that expands the protection conferred by the right”, which can be read hand in hand with the repealing of Section 3 of the HRA requiring that Courts “[read] primary and subordinate legislation […] in a way which is compatible with Convention rights”. 

The politicisation of the issue masks the reality of how these provisions work in practice. The inference that would be fairly drawn from reading s3(a) of the Bill is that Courts have been bound, up until now, to expand any protection given by a Convention right. But this is simply not the case. 

The Courts have always been mindful of what Lord Nicholls — a former House of Lords Law Lord — called the “outer limit” of reading down Convention rights to interpret domestic legislation. Similarly, on a more fundamental level, it was recognised by Lord Bingham as early as 2004 that ECtHR judgments are not in the strict sense “binding” on the UK. Even the ECtHR is wary of overreaching, always conscious to afford each State a “margin of appreciation” to implement Convention rights as may be most appropriate in their respective domestic contexts. 

 What this goes to show is that the latest attack on human rights is tangled  in rhetoric that purports to enhance — and re-establish — the UK’s sovereignty and independence on the world stage, when nothing could be further from the truth. The repeal of the Human Rights Act is nothing more than the first step in removing our protections against the might of the State. Indeed, the House of Commons debate on 22 June highlighted that some Conservative politicians were in fact more concerned with the Government’s accountability to any court, not just an European one. 

It will entrench further the unaccountability of a Government that has cut off every imaginable body part to spite its face in the attempt to retain any semblance of control, leaving its nearly-lifeless body twitching in the corner while the rest of the world looks on, embarrassed on our behalf. And who will this affect? It won’t be the millionaire Ministers who never have to suffer the consequences of their actions: it will be those with no voice, no protection from the creep of authoritarianism, no recourse to justice. One day, it could even be you.

Enjoying The Critic online? It's even better in print

Try five issues of Britain’s newest magazine for £10

Critic magazine cover