30 May 2022
In the early years, Abu Hamza al-Masri’s deportation from the United Kingdom to America became a national conversation. Despite numerous requests to extradite the radical preacher who called out for global jihad, this case spent years traveling up the courts and finally reaching the European Court of Human Rights. Although the judges ruled Hamza could be extradited without delay, they spent a lot of time weighing whether this would violate Hamza’s human rights as outlined in the European Convention on Human Rights. Shortly after Hamza’s deportation, then-Prime Minister David Cameron declared the extradition process should be quicker – a dog whistle for those who felt the requirement to consider ECHR rights should be reviewed.
Since then, the Human Rights Act’s proposed repeal has hung over government policies. Now, in the Queen’s Speech, Prince Charles has announced that “[M]y Ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights”, implicitly declaring a repeal of the HRA. This was a long-awaited event.
Yet the narrative that has been constructed around the Human Rights Act — of a dilapidated Act that doesn’t pass muster — is odd to those who have seen it in action. Despite political posturing, most politicians accept that the ECHR has been a part of the UK’s human rights framework for over two decades because it tends to work quite well. The Act can cause problems for ambitious Ministers who want their policies to be passed without any opposition (this is similar to the issue they have with a review by the courts). The Act does, however, do what it is supposed. It effectively imports a set of clear and consistent rules for defending and protecting the legal rights and interests of individuals.
It has proven that it can be objective and fair regardless of which government is in power. The Act, out of all the law pieces, has never been subject to serious criticism regarding its inability to work and has never been accused as being unfit for its intended purpose by anyone with no political stake in its removal.
Any changes or replacements will be complicated because of these factors. To make a new “Bill of Rights” work in practice is harder than the rhetoric makes it sound.
First of all, to do what Raab’s Bill proposes would mean a definitive break between the UK courts and Strasbourg. In 1998, the Blair government made human rights under the ECHR part of national law. This meant that British judges had to take them into consideration when deciding cases being heard on British soils. This included a duty of determining whether British laws were compatible or not with those in ECHR. If the government plans to ignore Strasbourg courts, it is difficult to see how this new piece could still accommodate that fundamental provision. The government seems to have no desire to consider the alternative of the UK leaving the Convention.
Plus, you can also get a recent report from the Joint Committee on Human Rights stated that a new Bill of Rights as currently proposed would represent “a risk of increased legal uncertainty and increased litigation costs2 (probably meaning more judicial interpretation, not less). The report also said that, after everything, a likely result would be claimants deciding to try their luck at the European Court of Human Rights at their own expense — the very outcome which the HRA was designed explicitly to avoid. Raab sees some logic in this, as punitive legal expenses would likely discourage potential claimants. This is something he seems eager to make happen.
If the proposed changes result in an open violation of convention rights and a restriction on access to justice, it could leave the UK in further trouble. There are several human rights enshrined in the ECHR that the Bill would weaken — including the right to freedom of association, and the right to a fair trial. There is the possibility of breaching the Good Friday AgreementThe HRA protections have been weakened has also been discussed.
The writing of the Bill also raises questions, and the government’s record of legislative composition has not been laudable. Recent pieces (like the Police, Crime, Sentencing and Courts Bill, as an example) have been decried for their sloppiness. Any Bill of Rights created by this government may easily be a confusing, poorly-drafted statute that will be subject to head-scratching by legal experts long after it is made law.
The justice secretary may see issues around how to make the document hold water as simply obstacles to be removed, believing that the main goal is to produce something – anything – that will satisfy the desire of many in his party to put the UK at odds with European law. But the questions hanging over such a piece of legislation – what it aims to do in real terms, how it will be interpreted, and ultimately why it is better or more useful than the current Human Rights Act – will dog its implementation to the end.
The Human Rights Act has been a huge success because it is a nuanced, essentially non-political document that is dedicated to upholding basic human right. It is also complex and refuses the broad brush populism Raab advocates. The devil, as always, is in the detail — something on which this new Bill is frighteningly short.