Plans are afoot to repeal or rewrite the Human Rights Act and replace it with a British Bill of Rights. What will the reforms entail and what impact will this have on human rights lawyers? We did some digging, spoke to leading human rights lawyers and found out.
A primer: what is the Human Rights Act?
The Human Rights Act (HRA) was passed into law by parliament in 1998 and came into force in 2000. It was one of the new Labour government's first moves on getting the keys to Number Ten. The Act incorporated the European Convention on Human Rights (ECHR) into British law, and meant that the rights set out in the ECHR could be cited by judges in all UK courts.
The HRA is a powerful and sassy piece of legislation: it took 16 of the ECHR's fundamental rights and set out the ways people could access them in the UK. It also decreed that all future laws should be compatible with these rights, and even worked retroactively: the higher courts could issue a 'declaration of incompatibility' asking parliament to bring a certain law in line with the HRA. The Act also mandates that all public authorities – the police, schools, hospitals – must comply with the Covention rights in everything they do.
The Act came about as part of the government's broader attempts at constitutional reform (including Scottish and Welsh devolution) and the protection of individual rights (eg the introduction of the minimum wage). There was also a financial efficiency motive: before 2000 if someone wanted to claim that their rights had been breached under the ECHR they had to appeal their claim all the way to the European Court of Human Rights in Strasbourg.This could take five years and was an expensive endeavour, costing around £30,000 a pop. So the Act was also slimming down what had become a bloated system of appeal by – in its own words – 'bringing rights home'.
Calls for change
Ever since it came into force the Human Rights Act has attracted criticism, most notably from right-wing newspapers and politicians. Its detractors see the Act, and the ECHR, as tools with which foreign terrorists can more easily dodge deportation, criminals' rights are placed above those of victims, and even chimpanzees can be granted equal rights. For them, the HRA and ECHR cede British sovereignty across the English Channel to unelected European judges, undermining the sovereignty of parliament. The current prime minister David Cameron first pledged to reform the HRA in 2006 when he was leader of the opposition, and critics' calls for reform were strengthened in 2009 with the creation of the Supreme Court – surely, they argued, the Supreme Court should be the ultimate arbiter of UK justice and not some wacky euro-court in Strasbourg.
The 2010 to 2015 coalition government was somewhat stymied on the issue of the HRA. The Conservatives had pledged to repeal the Human Rights Act and replace it with a 'British Bill of Rights', while the LibDems had always been vocal supporters of the HRA and ECHR. In 2012 the coalition government set up a 'Commission on a Bill of Rights' to investigate the different proposals for human rights reform, but it failed to reach agreement: members even started contradicting each other with Martin Howe QC, vociferous critic of the HRA, saying that human rights lawyers 'treat the HRA as a sacred text',while Philippe Sands QC and Helena Kennedy called the proposals for change 'retrograde and inconsistent'.
A British Bill of Rights: what might be in it?
At the 2015 general election the Conservatives once again pledged to repeal the HRA, and after winning a surprise majority the task of reform fell to newly appointed Justice Secretary Michael Gove. A consultation paper on the issue is set to be published 'soon', according to Gove when he appeared before the House of Lords' EU justice sub-committee in early February 2016.
Gove's appearance before the Lords' sub-committee made three things clear. First, the government has no intention of leaving the ECHR. Second, plans for changes to the HRA have become linked to the UK's EU membership and the planned Brexit referendum. (As legal journalist Joshua Rosenberg has pointed out, this is more than a trifle odd as that the ECHR and EU are not directly linked.) Third, the plans to amend the HRA or replace it with a British Bill of Rights largely appear to be limited to these elements:
- Amending section two of the HRA stipulating that British courts 'must take into account' the decisions of the European Court of Human Rights in Strasbourg.
- Reasserting the primacy of the UK Supreme Court over Strasbourg.
- Reaffirming free speech over privacy and ensuring the protection of journalists' sources.
- Making changes which ensure British military personnel are no longer subject to the HRA's jurisdiction while engaged in armed conflict abroad.
On the first point, the straightforward suggestion is that 'must' will be replaced with 'may', rhetorically toning down the regard which UK courts must show for Strasbourg. But such a change is not a fundamental one – it is semantic. “The HRA is a very subtle bit of legislation,” explains Chambers-ranked human rights barrister David Pievsky of Blackstone Chambers. “It doesn't make other legislation invalid, but allows declarations to be made about incompatibility with human rights; and it only required ECHR caselaw to be taken into account when deciding UK cases. Beyond that courts can make their own decisions.”
Points two and three above are also changes in tone rather than fundamental alterations. Adam Wagner, Chambers-ranked human rights barrister at 1 Crown Office Row and founder of the website rightsinfo.org, tells us: “It may be that the HRA is replaced with a similar document. If that is the case, one does wonder what the point of all the sound and fury over 'restoring common sense' to human rights law is about.” There will be, says Wagner, “an attempt to reaffirm the Supreme Court's primacy – particularly over EU law – and focus on the importance of common law rights and the British tradition of liberty.” But even the most extreme reforms will not alter human rights law fundamentally.
Only the fourth point mentioned above – changes to prevent extraterritorial claims against British service personnel abroad – requires a significant amendment to the Act. And this is only one of the many issues which have provoked the ire of critics of the HRA. As David Pievsky observes, “major disagreements between UK courts and Strasbourg are relatively rare: the ones that come to mind are human rights on to the battlefield, prisoner voting rights, and deporting suspected terrorists.” While the first of these is set to be addressed, it is still unclear what may be done about the second two – and these are the very issues which have provoked the strongest reactions from opponents of the HRA!
It is possible that these issues will be left to one side, kicked into the long grass or only addressed symbolically. David Pievsky again: “My impression is that the likely outcome of the government's plans is that something will be done to modify or tinker with the current legislation. We don't know what a British Bill of Rights will look like, but I would be very surprised if it made fundamental changes to human rights.” Things will hopefully become clearer with the publication of the government's consultation paper, but for now there's still a lot of doubt in the air.
How will changes affect lawyers?
What is not in doubt is that large sections of the legal community are up in arms about the potential repeal of the HRA. Philippe Sands QC of Matrix Chambers tells us he believes the government is in “a bit of a mess” because “they probably didn't expect to have to go through with this.” (A reference to the expectation that there would be a hung parliament after the 2015 election.) Adam Wagner agrees, adding that “significant portions of civil society will object to these plans.” We also asked Sarah Leigh, founding partner of human rights firm Leigh Day, what she thought of the proposal to replace the HRA. “It would be a disaster!” was her simple response.
There is at least one major constitutional conundrum which the government will have to address if it truly wants to repeal the HRA: devolution. As well as being incorporated into UK law by the HRA, the ECHR is directly incorporated into the Acts of Parliament creating the Scottish, Welsh and Northern Irish legislatures. The obligation placed on the devolved governments to abide by the ECHR is actually stronger than that laid out in the HRA. So even if the HRA were repealed, the ECHR's provisions would remain (partially) enforceable in Scotland, Wales and Northern Ireland. In addition, full withdrawal from the ECHR – though now ruled out – would require permission from the devolved legislatures, which they are unlikely to grant. Philippe Sands tells us: “Having served on the previous government's Commission on a British Bill of Rights, I saw first-hand that those who seek change have not really thought through all the implications and potential problems.”
So major change seems unlikely, but let's ask the 'what if' question: what if all these issues are addressed and big changes to the HRA are made or it's repealed? What if those changes include provisions limiting human rights protections for (suspected) criminal and terrorists? How will this affect human rights lawyers? Will it mean less work? Philippe Sands is adamant that it will not: “The architecture of human rights law may change shape but human rights law is here to stay. I don't want to be complacent, but the special role played by the UK legal community in the rule of law worldwide is not about to disappear.” Adam Wagner believes the worst case scenario (a repeal of the HRA) would mean, “more work not less for lawyers, at least in the short term.” And David Pievsky has similarly reassuring words for anyone interested in practising human rights law: “I don't think the government's reform proposals mean that there will necessarily be less human rights work in the future.”
If you're an aspiring human rights lawyer, you'll need to keep abreast of potential changes to the Human Rights Act. Whatever does happen, the UK has a long history in upholding human rights and bringing to account those that violate them, and that is unlikely to change.
This feature was first published in March 2016