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Human Rights Act review: Fair or farce?

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Birmingham University student Charlotte Tomlinson casts a critical eye over this week’s government announcement on World Human Rights Day 2020

With less than a month to go until the Brexit transition period ends, the government has announced a review into the Human Rights Act, with its recommendations to follow in summer next year.

The Human Rights Act (HRA), passed by the Labour government in 1998, is a composition of ‘articles’ concerning the rights and freedoms people residing in the UK are entitled to. These rights include the right to education, a fair trial and protection from any of your rights being discriminated against. The rights in question were first set out by the European Convention on Human Rights (ECHR), and were enforced as domestic law in October 2000.

Twenty years later, a review led by ex-Court of Appeal judge Sir Peter Gross among other distinguished legal practitioners and academics, aims to critique not the individual rights, but the Act’s “structural framework”. This means, in reviewing how the Act should continue to be interpreted, the panel will be considering the relationship between the HRA and the judiciary, executive and parliament.

Though on the face of it, it may seem perturbing, this is not an unsurprising development. The October 2019 Political Declaration of the future relationship between the UK and EU announced its determination to escape the European Union’s control on issues such as military operations. The review into the Human Rights Act can be viewed as another attempt to escape any influence the European Union can have in the UK’s legal and political spheres.

The timing of this clearly indicates the Conservatives are trying to ‘take back control’ of the UK’s status as a legal entity outside the EU. Section 2 of the Human Rights Act requires domestic courts to “take into account” any decision made by the European Court of Human Rights, meaning follow the clear and constant jurisprudence delivered by the ECtHR. The review explicitly seeks to consider if this “dialogue … works effectively and if there is room for improvement”. In other words, the Conservatives are seeking to follow their 2019 party manifesto to update the Act to ensure British parliamentary sovereignty.

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This is despite warnings from the Equality and Human Rights Commission (EHRC) that the HRA is already well-crafted and maintains the primary role of the courts. Former EHRC chair David Issac has explicitly stated that any attempts to alter or replace the Act will move the country backwards. What is concerning, is that in the UK’s previous attempts to so-called reclaim sovereignty, we are already beginning to see this happen. The EHRC’s 2017 report found the UK government to be in contempt of human rights abuses, as they delayed investigating allegations of torture and ill-treatment of the British military abroad.

More recently, on 1 December new immigration legislation was enforced making rough sleeping grounds for deportation for non-UK nationals. This unnecessarily cruel legislation, targeting the most vulnerable, will undoubtedly lead to an increase in human rights abuses, such as an increase in human trafficking. After such legislation was made the same year as rough sleepers were urgently accommodated to ensure they had access to proper hygiene during a pandemic, this goes to illustrate how little the government cares about human rights, and why we should all be concerned about the outcomes of this coming review.

Labour’s Shadow Justice Secretary David Lammy has criticised the government’s timing of launching an attack on human rights in the middle of the pandemic, and I am glad somebody is. Questioning our commitment to human rights during a time when recognised protections to healthcare and safety from legal persecution could not be more important, is a frightening reality to grasp. In a year featuring other such repugnant government announcements such as refusing to pay for free school meals for children, the announcement of this review is equal parts illogical and distressing.

Based on the previous evidence we must go off, nothing productive can come from this review. This panel is the manifestation of our irresponsible government trying to wrangle their way out of being held accountable to the standard of internationally recognised human rights. It is in the interests of all in the UK, that we fight as hard as we can to legally keep and respect these rights otherwise the practical consequences, beyond our country’s legal reputation, could be too tragic and dear.

A formal inquiry into reviewing our recognition of the Human Rights Act, during the midst of a worldwide pandemic, is a damning indication of what post-Brexit Britain’s values and commitments are to core legislation at the heart of all our freedom and security. This review is testament to Conservative apathy to the population and the legal protections ensuring our human dignity in general.

Charlotte Tomlinson is a final year philosophy student at the University of Birmingham. She is an aspiring barrister and intends to start the GDL upon completion of her degree.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

17 Comments

Zelo

Interesting read

JB

A nice article, and sizzling in its second half!

Anon

The article makes good points about why human rights are important, but not why the human rights articulated in the ECHR are “correct”. By reviewing, and possibly removing the country from, the reach of the ECHR, the government are not proposing scrapping the concept of human rights. They are merely proposing that exactly how those rights are set and enforced should be decided on a national basis, as opposed to a pan-European basis.

Human rights are essentially rights that are deemed so important that they cannot be democratically altered. On that basis, it is highly reasonable to seek to limit them. Policies like not extending free school meals are the sort of thing (in my view) that should be decided democratically, as repugnant as you may believe them to be. Make better policies through voting, not through the courts.

Roly

The ECHR was drafted mainly by British Jurists in an attempt to codify for the Continent rights found in Common Law.

Politically active ECtHR judges have sought to bend it to their supposedly progressive agenda in the decades since.

We don’t need it here. Never have.

Anonymous

If there’s one place we need it it’s here.

Judex Iscariot

The ECHR protects the rights of Council of Europe countries, which is quite separate from the EU. The UK will still be signed up to the ECHR when it leaves the EU. The human rights of UK citizens will continue to be protected even after they come out of the EU. UK citizens’ rights under the ECHR are protected by the Human Rights Act 1998. It was a work of great sophistication, allowing UK citizens to enforce their convention rights without having to go to the European Court ofHuman Rights, at the same time preserving the primacy of parliament over the courts. Losing it is an appalling prospect. It is hard to imagine any of the rights under the HRA 1998 that an advanced, civilised country would no want to adopt and be bound by. The previous government attempt to think of a replacement came to an undistinguished end when so many lawyers abandoned ship.

Boris, Brexit and Trump

Ordinary, hard working, law-abiding Brits have gained nothing from this human rights nonsense and certainly our lives are worse for it. It’s great if you are criminal trying to get off or trying to cut your sentence; it’s great if you an illegal immigrant trying to delay being sent home after committing crimes entering the country or once you are here; it’s great if you are a traveller wanting to set up camp on someone else’s land without their permission; it’s great if you are a benefits scrounger trying to stop changes to how taxpayers’ hard earned money is spent and allocated by our elected politicians…. Yes, the Human Rights Act was and remains and expensive disaster.

Normal Hard Working British Citizen

Eeeeeeeeeeeeeeexactly!

Anon

Human rights protect all of us. Almost by definition ‘ordinary’ citizens only need to invoke them when something happens or they find themselves in a minority group. For example, Art 2 (life) requires a higher standard of inquest to be held in cases where death may have been at the hands of the state – look at Hillsborough. ‘Normal’ people attending a football match.

If you take these protections away from international organs and leave them in the hands of parliament the risk is that when people need these rights the most, they won’t be there.

A

Just not worth it. For all the alleged benefits, and I find your example of marginal value, we are being drowned in abuse by those that are not aligned with the interests of the ordinary hard-working honest law abiding English. That large group have been silenced for so long by the do-gooders and leftists criminal apologists.

Mizuchi

It does not seem entirely clear that the author has fully appreciated that the ECHR is a Council of Europe treaty, that the Council of Europe is quite separate from the EU, and that Brexit does not affect either the UK’s membership of the Council of Europe or its being a party to the ECHR.
Also, I see no mention of the author’s point about military operations in the political declaration. The UK government does, however, have a grievance about the applicability of the ECHR to UK forces engaged in overseas armed conflict. But again, this has no connection to the EU or to Brexit.

EuroFile

Meanwhile in the US, President Trump is on an end of term execution spree and Deep South teachers can still beat kids with paddles. Also, don’t get me started on police shootings.

Look across the pond to see how “common law” rights are protected.

Anon

Oh do get started. The superficiality of your clichés will be entertaining. Just wait a little while, I have to get the popcorn.

EuroFile

Oh? So you would like to bring back capital and corporal punishment, Anon?

I’m not going to make any assumptions about the levels of foam round your mouth- let’s hear your arguments for their return!

*grabs own popcorn, and an ice tea*

Anonymous

Answers to you seem to be censored.

I don’t need to want to bring back capital punishment. I am defending the right of the people to have the ability to decide capital punishment is appropriate, which the vast majority already do, and not have democracy undermined by the morals of the liberal metropolitan elite.

You need to explain why the government cannot send home a foreign violent criminal to wherever he came from just because he happened to have a couple of anchor babies while here or the happen to have a pet cat.

EuroFile

Fair points.

LC is so scared of litigation these days that I hear on the grapevine that anything worded too contentiously doesn’t make it through these days.

Shame. The level of debate and banter has gone right down in recent times.

Lynsey

Are we coming out of human rights then

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