Urgent Call to Action on The proposed removal of Human Rights in the UK for the Greater Good

An update to a previous article

I wrote about the proposed changes to the Human Rights Act at the end of February. Please have a read of the article to see what the UK government is looking to reform and why some parts of it are not good.

Today is the last day to respond to their proposals which have been under consultation. So, if you haven’t done so already, please write an email or complete the form online.

To assist you, one of my readers has provided me with a link to some guidance from Save Our Rights and their own email to highlight their objections and where to send.

Please share this far and wide today as it is really very important.

To: HRAReform@justice.gov.uk

To whom it may concern

I set out below my response to the consultation: Human Rights Act Reform: A Modern Bill Of Rights (publishing.service.gov.uk) (which I refer to as the “Consultation”). 

I am by profession an actuary and my interest is from the perspective of a UK citizen. I am responding to this consultation as I believe it’s critical for members of the public to have a say in such a fundamental issue as human rights. The ease with which several of those rights have been diminished under emergency powers over the last two years highlights the fragility of our rights, even in a liberal democracy like the UK. 

As a non-lawyer, I have decided not to answer the specific detailed and technical Consultation questions. Rather, I provide a general response, by focussing on three areas all of which are discussed at length in the Consultation: 

1. The Human Rights Act (HRA): replace or adjust? 

2. The tension between individual rights and the “wider public interest” 

3. The role of “responsibilities” in human rights. 
   

I also make some brief points on: reducing the scope of certain rights (liberty, fair trial, and respect for private and family life); UK vs Strasbourg; separation of powers; secondary legislation; the use of emergency powers to suppress human rights; and the government’s approach to this consultation process. 

I believe the government should be doing more to uphold our human rights, but instead I find these proposals weaken and dilute them, which is why I cannot and will not support these proposals. For the avoidance of doubt, any issues in the Consultation not covered in my response should not be taken as silent endorsement. 

1.  The Human Rights Act (HRA): replace or adjust? 

I do not believe it is appropriate to replace the HRA with a new bill of rights.  

I appreciate the arguments for replacement set forth in the Consultation and I can see the advantages from the perspective of government, but I believe they lead to an unacceptable degree of dilution of rights from the perspective of people in the UK. 

I also note that the December 2021 report from the Independent Human Rights Act Review (IHRAR): 

• Comes to a very different conclusion to the Consultation itself. It concludes that: 

  • the HRA is working well and as intended, and there is no case for any large changes 

  • the HRA should not be mainly viewed through the prism of a few high-profile cases “… or indeed with a focus on litigation at all” 

  • the vast majority of evidence they received (over 150 written submissions and several meetings across the UK) supported this conclusion 

  • minimal changes to the HRA are suggested – those changes focus on more education on how the HRA works in order to facilitate better access to the rights it contains 

• Was prepared by an independent panel set up by the same government department as the Consultation. I am concerned by this – why would the government apparently ignore these thoroughly and widely researched findings and propose effectively the opposite? 

• Was published on the same day as the Consultation. This also concerns me. Where is the transparency on how the government has considered the IHRAR report findings in devising the Consultation proposals? 
  

I also appreciate that, with regard to the European Convention on Human Rights (1950) (“ECHR” / “The Convention”), the Consultation states that “The UK will remain party to the Convention, and the rights protected under the Bill of Rights will continue to be based on the rights protected under the Convention”.  This means the 16 rights in the Articles of the HRA are, on paper, preserved. At face value this might suggest that the Consultation is therefore only about minor issues of implementation. However, these proposals contain fundamental changes to the way our rights would (or would not) be accessed in practice, mainly by making the government and other public bodies less accountable. This is wholly unacceptable. 

Finally, as has been stated by many experts, including for example Professor Francesca Klug OBE, the HRA is already for all intents and purposes a “Bill of Rights” (because first, it is a “higher law” that all other legislation has to comply with (including a statement of compliance); and second, it is “universally applicable”). The proposed bill of rights could exclude the statement of compliance (and so wouldn’t even be a proper bill of rights). 

2.  The tension between individual rights and the “wider public interest” 

• The Consultation makes repeated reference to “the wider public interest” (and similar terms like “the rights of wider society”). When does this notion of “collective rights” override the rights of individuals? I think this is the single most important question.  I believe the proposals take us in the wrong direction and lead to huge risks of unintended consequences. 

• For example, regarding freedom of expression: the Consultation states that, when adjudicating on the acceptability of a person’s comments: “Where Parliament has expressed its clear will on issues relating to the public interest and the exercise of public functions, this should be given great weight”.  So the proposed bill of rights would support our free speech, but only as long as what we say corresponds to the government’s perspective. I strongly oppose this. 

• I believe that a primary function of human rights legislation should be to allow people the freedom to express non-mainstream views (see also HART Group on this: The review of the Human Rights Act – HART (hartgroup.org)). I am very uncomfortable about the proposals in this regard.  

• Appeals to the “greater good” have characterised some of the most heinous regimes of the 20th century. 

• I am very concerned about the risks of a creeping trend towards a more authoritarian system of governance, and I strongly oppose any proposals that could make that more likely. The “wider public interest” is vaguely defined (if at all), and could be used by the government across a huge range of scenarios (examples: mandatory digital IDs to make the finance system more “efficient”, mandatory weight loss to protect the NHS, blanket alcohol ban to improve public order, illegal to have more than one child in order to mitigate global warming, etc.).  While it may (superficially) appear paradoxical, a focus on protecting individual rights is the only way, in my view, to protect against this very considerable risk. In the long run, eroding individual rights erodes the rights of the collective. 

• This question is also linked to the potential for non-absolute rights to be restricted.  I believe the three tests in the HRA already provide an appropriate framework for this to be assessed (the “lawful”, “legitimate” and “proportionate” (least restrictive option) tests). I do not believe these tests have been applied appropriately in the last two years, but that issue is outside the scope of this Consultation. I do believe that the Consultation proposals would make it significantly easier to restrict non-absolute rights, and I am strongly opposed to that.
     

3.  The role of “responsibilities” in human rights 

• The government has a responsibility to proactively protect the rights of minorities – this is needed not least because democracy is a blunt tool based on “majority” voting. 

• To quote Lady Hale (former President of the Supreme Court) in the disabilities context of the Cheshire West case: “…This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings … Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.” 

• I believe this principle should apply to all minorities across a wide range of situations – including ethnic, religious, age and gender, as well as those who do not adhere to majority or official opinions or narratives. 

• The Consultation aims to reduce the responsibilities of public authorities – by limiting their “positive obligations”. The HRA requires public authorities to take proactive steps to “safeguard” our rights. This duty has proven crucial in achieving justice – the Worboys case provides just one example where the survivors of rape were able to hold the police accountable for failing to protect their human rights because of failures to properly investigate reports of the crimes. Limiting this duty could mean that more of us have our human rights breached and that it is harder to hold public authorities to account. It would also make it harder for staff in public bodies to take positive action to support us and our human rights. 

• The Consultation proposes placing great emphasis on the responsibilities of the individual. I disagree with this as a point of principle.  It would mean that an individual’s behaviour could be considered when deciding whether it was acceptable to limit their human rights and in deciding what damages to award them. This includes not just a person’s conduct during the case in question but for their whole lives. It would mean that we have to earn the right to our rights, and it would also mean that not everyone would be entitled to the same rights and would move the UK away from one of the main principles of human rights – that of universality. 
  

Other points 

• Reducing the scope of the rights to liberty, fair trial, and respect for private and family life 

  • These proposals are framed in the context of the ability or otherwise to effect deportation. Regardless of one’s views on that particular issue, I disagree with these proposed rights dilutions because they would inevitably be applied to other situations. 

• UK vs Strasbourg 

  • The proposals aim to ensure that Parliament has the final word if there is a ruling by the European Court of Human Rights (ECHR) finding that the UK has breached an applicant’s human rights. Currently, Parliament is responsible for responding to negative judgments from the ECHR, and the courts cannot force Parliament to make or change any laws. For example, in 2005, the ECHR ruled that the UK’s blanket ban on prisoner voting was unlawful. To date, in 2022, Parliament still has not changed this law in England. So new rules are not needed to enable Parliament to ignore Europe. 

  • While I understand the proposals to restrict the “living instrument” issue, I do not agree with them. The Convention was intended to be a living instrument so that the Convention rights can develop as society changes. 

  • For example, the right to privacy in Article 8 was written before much of the surveillance technology we now have, like CCTV. Because of the living instrument, our right to privacy from surveillance technology is protected under Article 8. 

  • The proposed “permissions stage” would likely increase the number of cases being brought to Strasbourg, the opposite of the intended effect of this proposal. 

• Separation of powers 

  • The Consultation makes some interesting points about the relative powers of the courts vs Parliament, and the dangers of a situation where the courts are in substance going beyond interpretation of the law to creating law. 

  • This is a difficult issue. The role of the Supreme Court of the US (SCOTUS), including the role of politics in the appointment of its judges, may be put forward as an example of where the UK does not want to go. 

  • But I believe there is no simple solution to this problem.  

  • Most importantly, I do not believe that the current HRA leads to an unacceptable loss of democratic oversight due to excessive judiciary influence, and I do believe that the Consultation goes way too far in the opposite direction by placing too much power in the hands of government. 

• Use of the HRA in practice 

  • I understand the concerns described in the Consultation that the HRA can be abused by people by bringing unworthy cases which lead to unnecessary costs of litigation. 

  • I agree this is a risk. But I believe the proposals go too far in the other direction. 

  • Courts and litigation are just one aspect, and the Consultation appears to omit the critical fact that the HRA is frequently used by a wide range of people in everyday life.  It is a powerful practical tool for advocacy, planning, delivering and securing rights-respecting services, and to support calls to change policy and legislation which is not rights-compliant. 

  • I believe the proposals would risk eroding these everyday life benefits, which is a much bigger and more unpalatable risk in a liberal democracy than the litigation risk. 

• Secondary legislation 

  • The proposal to eliminate judicial review of secondary legislation would take away a very important check and balance on our rights, by effectively giving ministers the ability to bring in new laws with no real scrutiny, and I therefore do not support it. 

• The use of emergency powers to suppress human rights 

  • This is one of the issues I feel most strongly about, but I have not majored on it here as it’s arguably not in the scope of this consultation. 

• The government’s approach to this consultation process 
  The following comments are in addition to my concerns described earlier about the treatment of the IHRAR. 

  • Documentation: the consultation document is long, complex and technical. It is therefore inaccessible to a large proportion of the people affected by the proposals (i.e. everyone). In a recent survey, 91% of people said that the document put them off responding (a recent workshop conducted by the British Institute of Human Rights – BIHR). A truly inclusive democratic process would avoid this, for example by providing summaries and simplified versions. 

  • Publicity: this consultation has flown under the radar with virtually no coverage by the mainstream media. Many people are therefore entirely unaware of its very existence – another egregious failure of process in my view. There has been essentially no public debate on this issue, which is of such fundamental importance to every person in the UK.  I believe the government had (and still has) a moral obligation to ensure such a debate takes place, so that people can understand the issues and have a realistic opportunity to express their views. 

  • Timing: the consultation was published on 14 December 2021 with a deadline for responses of 8 March 2022 (12 calendar weeks later). During these 12 weeks, we have had the ongoing pandemic (including the huge uncertainties brought by the new Omicron variant and “Plan B” restrictions), the Christmas and New Year holiday period, and the outbreak of the Russia/Ukraine conflict.  I believe it is unreasonable to expect people to have had the bandwidth to engage meaningfully with this Consultation given these very large distractions (even if they were made aware of it, and even if they also had legal expertise). 
    

Conclusion 

I suggest the government: 

• Scraps this Consultation entirely. 

• Works instead on implementing the IHRAR proposals. 

• Launches an inquiry into the human rights aspects of emergency powers, with a view to developing proposals for the future governance around how such powers are introduced and applied, to ensure that their future use does not inappropriately suppress human rights. 

• Develops an overall system – comprising both human rights legislation and a process of governance and implementation – that safeguards the basic human rights of all people in the UK, including the bodily autonomy of sovereign individuals, and the rights of both minorities and of those expressing minority views. 

I look forward to hearing back from you on these points.