Opinion: Barbara Bolton

The UK Government’s plan to replace the Human Rights Act (“HRA”) with a new Bill of Rights signals an intent to water down human rights protections, erect additional barriers to accessing justice and equivocate on compliance with decisions of the European Court of Human Rights (“ECtHR”) involving the UK.

If passed, these proposals would be deeply regressive, undermining 20 years of human rights law and policy development across the UK, making it harder for people to enforce their rights, and putting the UK in breach of its international law obligations. This should be of grave concern to us all.

The central aim of the HRA was to bring the protections of the European Convention on Human Rights into domestic law, making them directly applicable to public authorities (and others providing public services), and enforceable in our national courts. Under the UK Government’s proposed Bill of Rights, that objective would be severely undermined.

Interpretation of Convention rights by national courts would be explicitly decoupled from that of the ECtHR. National courts would be required to interpret Convention rights in a restrictive manner: abandoning the ECtHR’s “living instrument” approach, which ensures that rights keep pace with societal progress; removing the requirement to take into account decisions of the ECtHR; restricting positive obligations, such as the positive duty to properly investigate deaths involving state entities, which the ECtHR interpreted as part of the right to life; and applying an alternative interpretation of specific rights, including the rights to freedom of expression, private and family life.

Convention rights may technically remain incorporated into national law if listed in a new Bill of Rights. However, if national courts must interpret them distinctly from the ECtHR, the result will be legal conflict, confusion, uncertainty and a likely increase in successful referrals to the ECtHR. The additional proposal of a “democratic shield”, expressly permitting the UK to decline to implement ECtHR decisions against it, would put the UK in clear breach of the Convention and undermine the rule of law.

If the proposals were implemented, people would once again have to pursue claims all the way through the national courts and on to the ECtHR, only for the UK to potentially decline to implement a decision against it.

Additional proposals would add a number of significant hurdles to accessing justice, compounding existing barriers related to the complexity of law and procedure, the cost of securing legal advice and the lack of legal aid. First, a permission stage, requiring pursuers to establish that they had suffered “significant disadvantage” before they could proceed with their claim. Secondly, a requirement to exhaust other potential legal claims before raising a human rights claim. Thirdly, a requirement to demonstrate “clean hands”, where past conduct could be used to preclude someone from accessing a remedy for a breach of their rights, which would undermine a central principle of human rights law – that rights are universal.

It’s important to note that there is little consistency between the proposals and the conclusions, published at the same time, from the Independent Human Rights Act Review (IHRAR), set up by the Secretary of State for Justice in December 2020. Indeed, much of what is now proposed was not put to the IHRAR for consideration nor covered by extensive evidence provided to it during its 12-month review. Other proposals were rejected by the IHRAR, in light of overwhelming evidence that the HRA works well and there is no case for change.

A key concern flagged by many organisations during the IHRAR process was the additional complexity arising from the interrelationship between the HRA and devolution. The HRA is embedded into the Scotland Act, including in relation to limits on the competence of the Scottish Parliament and Scottish Government. Over 20 years of jurisprudence and practice has evolved in Scotland on the basis of that legal underpinning. Precisely how the HRA could be replaced without unsettling current devolution arrangements is unclear.

Detailed analysis of the UK Government’s wide-ranging proposals is underway, and responses to its current consultation will be forthcoming. However, it is already clear that what is being mooted should be of real concern for all who value human rights and the rule of law. Defending the Human Rights Act will require concerted efforts involving civil society, grassroots communities and the legal community.

As an initial step, responses to the current consultation can be submitted until 8 March.  

The consultation is available on justice.gov.uk