Ilhan Alp Yilmaz
A Misstep on the Journey: Government Proposal to Reform the Human Rights Act
The current United Kingdom government, led by Secretary of State for Justice Dominic Raab, unveiled plans to revise the Human Rights Act of 1998. On 12 April 2022, the Joint Committee on Human Rights warned that the proposed revision to the Act would weaken human rights in the UK. The report by the Ministry of Justice to justify the reforms, released on 7 March 2022, starts off by promoting the “long, proud and diverse” history of freedom in the United Kingdom. The Magna Carta, 1689 Claim and Bill of Rights and the Slave Trade Act of 1807 are given as stepping stones to modern freedom. Justifications to change the status quo, especially those regarding human rights, need to be convincing and the Ministry of Justice attempts to do this by framing the progression of human rights and freedoms in the UK as a step-by-step journey towards a better future.
This is not inherently incorrect however; the proposals need to ensure that they are a step forwards, not backwards. This, unfortunately, is not the case and the reforms proposed by the UK government to the Human Rights Act threaten to undermine human rights in the UK. In particular, the phrasing of suggestions by the government and the words they chose, as well as the potential practical implications of the reforms. are worth considering.
The suggested reforms include implementing a permission stage similar, but not identical, to those in other branches of law to ensure that the courts focus on “genuine human rights matters.” The use of “genuine” here suggests that under the status quo, the courts are wasting their time attending to breaches of pretend or illegitimate human rights abuses. There should also be no mistake as to what the phrase is referring to, even as the wording tries to soften the blow by saying “matters” as opposed to “abuses” in the report. Global Compliance News conveys the logical consequence of such a reform by suggesting that introducing such an arbitrary threshold risks establishing an acceptable category of human rights abuses that cannot be challenged in court. If the UK government wants the Human Rights Act to fulfill its purpose, why risk creating a subset of human rights abuses that remain outside of UK courts?
The second suggestion is to ensure that the UK courts are not required to alter or interpret legislation contrary to Parliament’s clearly expressed democratic will. Here, considering how these reforms will interact with devolution is important to evaluate whether the reforms are compatible with the legal structure of the UK. The Human Rights Act is built into devolution settlements across Scotland, Wales and Northern Ireland and the suggested reforms seem to ensure that the courts are left between a rock and a hard place by not elaborating sufficiently on the legal definition of “Parliament’s democratic will”. Whilst there is always some room for interpretation within courts, the phrasing of “Parliament’s democratic will” can muddy the waters as citizens living in Scotland, Wales and Northern Ireland vote for representatives both in their devolved assemblies and in the national Westminster Parliament. Barbara Bolton, Head of Legal and Policy at the Scottish Human Rights Commission, said that the reforms signal 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 involving the UK.”
Although there may be a case for the reforms to apply differently to the devolved regions, these governments have made their stance against the government reforms and it is likely that the changes would put further strain on any good will left between Westminster and the devolved bodies.
The final suggestion of this article is of the potential consequences of the push to recognise the responsibilities that exist alongside human rights. The government claims that these should be reflected in the approach to balancing qualified rights and the remedies available to claimants for human rights. The report excludes the word "human" before "rights" in a report that is about human rights which suggests that they are desperate to make this ludicrous idea more digestible. When only “rights” are mentioned in place of human rights, it makes them seem categorically identical to all other, lesser, rights that the citizens are entitled to, thereby removing the inalienability of the rights that we deem to be fundamental human rights.
Although in theory not immediately surreptitious, the reform suggests that in court, human rights should not take absolute precedence over any other laws and considerations. If there were a case where there were one human rights violation, three other laws broken and practical consideration for the remedies available for the claimants, the reform suggests that the human rights violation should not take absolute priority and supersede all other considerations. Even if it could be argued that the reform does not explicitly state that priority should not be given to human rights concerns, the mere mention of “recognising the responsibilities” that exist alongside them suggests that too much of the limited amount of attention is being given to human rights. Giving other concerns more attention in practice will mean less time spent on human rights concerns. Overall, the reform needlessly takes attention away from human rights concerns, thereby opening the possibility of human rights losing their priority in court over other concerns.
Therefore, on the journey toward a better and brighter Britain, the governments’ suggestions to reform the Human Rights Act would create a class of human rights abuses that cannot be challenged in court, complicate the implication of human rights and devolved bodies and take attention away from human rights in courts in favour of categorically inferior laws. The Human Rights Act will be less capable of fulfilling its purpose if these reforms are to be implemented.