Conservatives take aim at Human Rights Act - again
October 27, 2021
The government has publicly renewed its ambition to make potentially sweeping changes to the Human Rights Act (HRA), ahead of the publication of an independent review in the coming weeks.
During his inaugural speech to the Conservative Party Conference as Justice Secretary on 5 October, Dominic Raab announced that government would 'overhaul' the HRA before the next general election. This was needed to prevent “dangerous criminals abusing human rights laws,” and to “restore some common sense to our justice system,” Raab said, citing a case where a drug dealer convicted of beating his ex-partner avoided deportation by claiming his right to family life.
For those in favour of changing the HRA, the most common line of attack is that foreign national offenders have been able exploit human rights law to stay in the country following criminal conviction. Simon Clarke, the Conservative member of Middlesbrough and East Cleveland, led a Commons debate to this effect back in February this year.
These arguments are however somewhat separate from the Independent Human Rights Act Review, which aims to examine whether the HRA still functions appropriately, over 20 years on from its inception. The review, which was launched by the government late last year and is chaired by Sir Peter Gross, is due to be presented to Raab in his capacity as the Lord Chancellor by the end of this month and then published alongside a government response.
This is not the first time the Conservatives have set their sight on the HRA. As far back as 2006, David Cameron, who was then leader of the opposition, said any future government of his would scrap the HRA and replace it with a “British Bill of Rights”. Similar pledges were then made in the Conservative party’s 2010, 2015 and 2019 manifestos.
The government returned to the issue in earnest in December last year with the independent review. Crucially, within the review’s terms of reference, the government made clear that it remained a committed signatory of the European Convention of Human Rights (ECHR).
As a signatory, the UK accepts international legal obligations to uphold the rights of individuals and the jurisdiction of the European Court of Human Rights (ECtHR). With or without the HRA, the UK therefore remains legally bound to the ECHR, and individuals can take their cases to Strasburg regardless.
When the HRA was introduced in 1998, it effectively incorporated the ECHR into UK law. This means that human rights cases can now be heard and settled in UK courts by a judiciary which understands the intricacies of domestic law and is able to apply the national context when making judgment.
The government’s independent review questions whether courts could have too great a say in matters or policy as a result of this interpretive function. Leading Oxford academic, Professor Richard Ekins said in 2019 that the HRA was frequently “misused” by judges, resulting in “judicial interference” in “parliamentary democracy and responsible government”.
Supporters of the act however say that it elegantly negotiates the balance of power between the government, Parliament and the courts, and increases effective dialogue between the UK and Strasburg. Lord Robert Reed, President of the Supreme Court of the United Kingdom, said the HRA was "carefully framed to respect Parliamentary sovereignty" in his evidence to the independent review.
Parliament’s cross-party Joint Committee on Human Rights launched its own call for evidence on the effectiveness of the HRA earlier this year. Chair Harriet Harman said in July that, based on extensive evidence heard by the Committee, there was "absolutely no evidence for any changes" and that doing so would make it “harder for people to enforce their human rights” and expose the government to more cases and judgements in the ECHR.
Human rights groups have also stood up for the HRA. Liberty has noted that the law had enabled ordinary people to fight for their rights, from the families of those who died in the Hillsborough disaster to disabled people who had unfairly had their benefit payments removed.
For Labour, which passed the HRA into law whilst in government, talk of reforming the act is likely to evoke a significant reaction. Keir Starmer defended the HRA in his maiden speech to the House of Commons in 2015. And in December, David Lammy, Labour’s Shadow Secretary of State for Justice, said there was no need for the review, and it was “bonkers” to launch an attack on the Act in the middle of the pandemic.
The Ministry of Justice told Dods the government would assess the findings of the independent review before making any plans for the HRA. But whatever the review concludes, it looks likely that the HRA will continue to be political football for some time to come.
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