When you think of democracy, a lot of thoughts often turn to the Magna Carta[1]Britannica: Magna Carta as one of the first documents that codified the rights of man into English law way back in June 1215.
What a difference 807 years can make.
The Magna Carta formed the basis of English law for centuries and is sometimes regarded as the first “Human Rights Act”[2]libertarianism.uk: The British Constitution and the Right to Keep and Bear Arms for Defence and went on to heavily influence how the “Founding Fathers” wrote the Constitution of the newly formed United States Of America[3]ThoughtCo: Importance of the Magna Carta to the US Constitution.
England has had a formalised Bill of Rights in one form or another since 1689 when William III became King, after James II was removed from power due to his Catholic beliefs and meddling in acts of Parliament he felt were a detriment to his faith[4]BBC History: The Glorious Revolution.
The English Bill of Rights outlined 13 specific freedoms[5]History: English Bill Of Rights such as:
- The freedom of speech in parliament
- The freedom to elect members to parliament without a monarchs interference
- The freedom to bear arms in self defence
- The freedom from cruel and unusual punishment
Many of these are still codified in law in one way or another to this day and have been adapted or improved upon and merged into our modern day legislation.
The Modern Day Bill Of Rights
The Conservative party have a long history of trying to repeal the Human Rights Act 1998 from British statue books, dating back to Michael Howard in 2005[6]Maniffesto: Conservative Election Manifesto 2005.
The Human Rights Acts was brought in by Tony Blair’s Labour Government and enshrined the European Convention on Human Rights into British law, however the Conservatives have long argued that the Act means that people are allowed to bring “frivolous” lawsuits against the government[7]The Law Society Gazette: ‘Permissions stage’ to intercept frivolous human rights claims and that it also enables illegal asylum seekers to have deportation rulings dropped.
Why Is The Current Law An Issue?
Currently the law allows for a person to appeal to the European Court of Human Rights (ECtHR) if they feel that a ruling that has come from the British courts is unjust.
When the ECtHR rules, their decision supersedes any decision made in British courts and is legally binding.
The Government argues that this is hampering their efforts to deport illegal immigrants, foreign criminals and that the previously mentioned “frivolous cases” are clogging up the court system.
As a result, the Conservatives want to pull the Human Rights Act of 1998 out of British law completely and replace it with a “Bill Of Rights” that will cover how British citizens are treated and will allow for a new legal process wherein the Supreme Court would have final say on any challenges under British law and their decision could not be overturned by a ECtHR ruling.
It’s an important point that Britain doesn’t have to ratify new ECHR rulings into British law. For example the ECtHR ruled in 2004 that not allowing prisoners to vote was a breach of their human rights. The British did not sign up to this protocol and MPs voted to keep existing law was is it was[8]Full Fact: The Conservative Party’s Bill of Rights.
In a recent poll commissioned by Amnesty, almost three-quarters of respondents (73%) said they thought it was important to have the Human Rights Act as a safety net to hold the Government to account when things go wrong such as Hillsborough football disaster or the handling of the COVID pandemic[9]Amnesty International: Rights Removal Bill is ‘giant leap backwards’ for ordinary people.
So What’s All The Fuss About?
Part of the issue is that there’s currently a huge backlog of cases in the British legal system. This is partly down to trials being delayed by the COVID-19 pandemic but also because, as an austerity measure, the Conservatives closed 244 courts and tribunals since 2010[10]The Law Gazette: MoJ lays bare full extent of court closures[11]Parliament British: Courts and Tribunals: Closures. This means that cases are taking longer to be heard and sometimes a persons only recourse for timely intervention is to go to a “higher power” in order to have their case heard.
Along with this, freedom campaign groups are concerned with the lack of scrutiny the bill is receiving with Lord Chancellor (who is also Deputy Prime Minister) Dominic Raab seemingly rushing the bill into parliament in the wake of the Rwanda deportation flight being blocked by the ECtHR[12]Full Fact: EU court didn’t prevent Rwanda flight from taking off.
Also, a new Bill of Rights would cause issues with the Good Friday Agreement[13]Huffington Post: The Good Friday Agreement: 20 Years On, Why Is The Peace Deal Under Threat? as parts of the Human Rights Act were baked into the GFA and if they are removed from British law then the GFA may fall apart, damaging the peace in Ireland and Northern Ireland that is tenuous at best, and even more so in the wake of Brexit.
In a speech on the 13th of June 2022, the UN High Commissioner for human rights, Michelle Bachelet, said:
“I am worried about plans in the United Kingdom to replace one of the most important pieces of its human rights legislation – the Human Rights Act – with more limited legislation. I have concerns that repeal of key elements of the Human Rights Act would risk undermining access to justice and the right to effective remedies, introduce legal uncertainty, and increase costs.[14]United Nations: Oral Update on global human rights developments and the activities of the UN Human Rights Office”
Have The Government Thought This Through?
Well yes.
And no.
One of Boris Johnson’s Conservative party manifesto pledges was to introduce a “British Bill Of Rights” and after his election victory in December 2019, he had the Independent Human Rights Act panel look at the current law[15]Liberty: Explainer: Liberty’s guide to the Government’s plan to ‘overhaul’ the Human Rights Act and they produced a 580 page report on changes that could be made.
The Government decided that they didn’t need the findings of this report and launched their own consultation which ran from 14th December 2021 until the 19th April 2022[16]GOV.UK: Consultation Outcome – Human Rights Act Reform: A Modern Bill of Rights.
In the Consultation (There’s an EasyRead version in PDF Format here so you don’t have to wade through the full document) the government state that:
- Human rights are basic rights and freedoms that every person in the world should have
- Public services … have to help make sure people get their human rights
- The government will always protect people’s rights in the UK
- [The government] will also support the Convention on Human Rights to protect human rights across the world
Note that it mentions the Convention of Human rights in relation to human rights across the world and does not link it to Britain. An interesting “omission” don’t you think?
The consultation then goes on to state that the Human Rights Act is being used outside of the scope that it was intended and needs to be made clearer and not only protect the interests of a few people without seeing how it impacts others.
It states that Parliaments in all nations (England, Scotland, Wales & Northern Ireland) should be more involved in Human Rights decisions and that the British courts should be able to make these decisions without having to have the same opinion as the ECtHR.
Parliament will decide what rights are covered by the law and will work with the ECtHR but will ultimately keep control of British law.
The consultation adds that they’ll be keeping all of the rights in the Human Rights act 1998 (and by extension, the European Convention on Human Rights) but that they need to make sure that issues are real Human Rights issues before reaching the court and that the legislation doesn’t stop the government or public bodies from operating.
It also states that they will “protect people from being deported to places where they will be tortured or treated badly”, which is why a lot of asylum cases are currently won (as well as the “Right to a family life” under Article 8 of the ECHR)[17]The Guardian: What would a British bill of rights look like?.
The consultation states that there will be a mechanism in place for checking decisions made by the “European Court” if they say the decision of a British court is wrong. This means that while, in specific cases, you may be able to bring your case to the ECtHR, the ruling that it makes may be overturned by British courts as they see fit.
It’s important to note here that the consultation[18]GOV.UK Consultation outcome: Human Rights Act Reform: A Modern Bill of Rights received just 12,873 responses[19]Human Rights Act Reform: A Modern Bill of Rights
Consultation Response (Section 7) – PDF so it does not represent a large portion of the people it will affect.
Will We Still Have “Human Rights”?
Well yes.
And no.
The issue is that the government will essentially get to decide what our rights are. While they say currently that they will abide by the ECHR and we will still have these rights as part of British law, they will be able to add and drop rules as they see fit with no external oversight.
Critics also point out that the Human Rights Act as been used to get justice when the government has failed to act, such as finding out the truth about the Hillsborough football disaster[20]The Guardian: Hillsborough and Shankill relatives back Human Rights Act campaign or to hold the police to account when they fail to investigate crimes properly (I note with interest that both these examples cited by The Guardian involve the police…)
The “permissions stage” that the government are planning to introduce adds an extra barrier to people who want to see justice[21]Liberty: Explainer: Liberty’s guide to the Government’s plan to ‘overhaul’ the Human Rights Act and may stop them ever seeing their cases come to court even if they are (in their eyes and the eyes of the ECtHR) valid claims.
Depending on the final form the Bill of Rights takes, it may also remove the ability for judges to “strike down” certain legislation that they deem to breach human rights. If this is the case then, again, the government would be the sole controller of the laws surrounding our rights with little checks and balances remaining.
What Are The Wider Implications?
In recent months, the Conservatives have passed the “Police, Crime, Sentencing and Courts Act[22]GOV.UK: Protest powers: Police, Crime, Sentencing and Courts Act 2022 factsheet” which makes protesting effectively illegal – basically even one person making a bit of a noise could (I’m not saying they would) be fined up to £2,500 for holding an illegal protest[23]BBC: What is the Police and Crime Bill and how will it change protests?.
In addition, there is the Judicial Review Act[24]GOV.UK: Judicial Review and Courts Bill which changes the way in which cases are reviewed. Some say this Act will make it harder for people to have convictions overturned, make the process even longer and curtail people having an appeal refusal reviewed[25]The British Institute of Human Rights: BIHR Explainer: What is the Judicial Review Bill?.
What Does The Future Hold?
Human Rights and Liberty organisations are extremely worried that the government will be able to combine all three of these acts which will effectively allow them to remove a person’s rights completely across a wide ranging variety of scenarios.
From lone protester “Stop Brexit Man” Steve Bray [26]Wikipedia: Steve Bray, to Extinction Rebellion supporters gluing themselves to roads[27]Independent: Extinction Rebellion protesters glue themselves to tarmac at Oxford Circus, from Gay Asylum seekers running from the threat of torture or death to victims of injustice at the hands of a public institution such as the police – all of these will now have far less rights and freedoms to protest, request a safe harbour or find out the truth.
And as the United Kingdom moves itself further and further from external scrutiny, the future could be very dark for its citizens indeed.
Other Sources
- The British Institute of Human Rights: People will not be fooled by the Government’s Anti-Rights Bill – 22nd June 2022
- Justice.org.uk: JUSTICE responds to the Government’s legislation to repeal the Human Rights Act – 22nd June 2022
- Each Other: Conservative Party Makes ‘Vague’ Pledge To Update Human Rights Act – 25th November 2019
- Institute of Employment Rights: Conservative Manifesto: A British Bill of Rights? – 24th April 2015
- Thomson Reuters Practical Law: Conservative Party Manifesto 2005
- Wikipedia: Office of the United Nations High Commissioner for Human Rights
- Wikipedia: Michelle Bachelet
- History: English Bill of Rights
Katy is the editor-in-chief of FlippingHeck.com a blog about Self-Improvement, Productivity and Small Business Tips. When she’s not working, she enjoys gaming, making music and Reviewing Things.
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