Reason, not rhetoric, must underpin review of human rights rules
Driving a coach and horses through human rights protections and legal certainty risks damaging the UK’s international standing and could impact its attraction as a place to do business, warned solicitors’ leaders in their response to plans to ditch the Human Rights Act and replace it with a Bill of Rights.
The Law Society of England and Wales also observed that this week’s proposals were at odds with the advice of the independent expert panel appointed by the government just 12 months ago.
Law Society president I. Stephanie Boyce said: “People from all walks of life rely on the Human Rights Act to protect their rights and hold the state to account – to live free from government interference, to access vital services or to ensure the right balance is struck between freedom and security.
“Any reform of this subtle and carefully crafted legal instrument must be led by evidence not driven by political rhetoric.
“The so-called Bill of Rights would make life easier for government at great cost to the nation, eroding our rights, placing the UK outside the international community and on a collision course with the European Court of Human Rights.
“The Law Society calls on the government to strengthen rather than maim our robust legal system and global reputation as a leader in human rights protections.”
‘Acceptable’ human rights abuses?
I. Stephanie Boyce said: “Our initial analysis suggests the most damaging proposal for access to justice is the creation of a class of acceptable human rights abuses – those deemed not to have caused ‘serious disadvantage’. Anyone would have to pass this test of ‘serious disadvantage’ to be allowed to bring a human rights claim to the courts.
“That would affect each and every one of us and lead to a culture of disrespect for human rights in decision-making, with rights breaches that might be seen as ‘low level’ becoming acceptable because they could no longer be challenged, despite being against the law.”
Some people are more equal than others
I. Stephanie Boyce said: “Proposals that people would have fewer protections for their rights if they have committed some sort of undefined offence in the past would overturn the principle that everyone is equal in the eyes of the law – and would mean the state could violate some people’s rights without consequence.
“One defined group is further singled out to have their rights stripped: foreign offenders. Proposals suggest they should be forbidden from appealing a deportation order except in specific and narrow circumstances, or blocked from protecting their rights, without any consideration for how long they have lived in the UK, the family they have here, or their familial and social connections in the country to which they would be deported.
“This is disproportionate and unnecessary – foreign offenders can already be deported in the public interest even where there are arguments against this based on their right to family life. Let alone that such a move would simply shunt appeals to the European Court of Human Rights, resulting in further cost and delay.
“No rights-respecting nation should be prepared to take forward these suggestions.”
Being part of the international human rights community
S2: Duty to take account of ECHR case law
I. Stephanie Boyce said: “While it is in theory good news the government intends to stay in the European Convention on Human Rights, this would become meaningless if we do not continue to keep pace with the evolving international consensus about what rights mean in practice.
“The UK’s reputation would be damaged if the proposed Bill of Rights encouraged UK courts consciously to uncouple from the European Court of Human Rights. This would set us ever more adrift from the international community and would make the UK a far less attractive place for international dispute resolution, which currently makes a significant contribution to the UK economy.
“As I’ve said before, this proposal is redundant as UK courts do not, as government suggests, ‘blindly’ follow case law from the European Court of Human Rights – domestic courts already give primacy to British law. If we step away from the European Court of Human Rights that could mean less protection for UK citizens’ rights in the UK and more UK citizens having to resort to taking their case to the European level, making this measure counterproductive.”
Severing the courts’ human rights duty
S3: Duty to interpret legislation compatibly
I. Stephanie Boyce said: “Government proposes weakening or removing British courts’ duty to ensure human rights are respected in their judgments (the ‘interpretative duty’). This would weaken our system of human rights protections immeasurably and prevent the swift access to justice intended in the creation of this duty.
“It would also disregard the advice of the independent review, which is that more data is needed about how the courts have approached this duty, which we would support.”
Ministerial decisions could become untouchable
I. Stephanie Boyce said: “People must continue to be able to go to court to challenge rules made by ministers without parliamentary scrutiny – secondary legislation – if rights are at risk.
“The proposed Bill of Rights seems to be trying to elevate ministerial diktat to the same level as laws made by parliament by preventing courts from overturning ministerial decisions which violate rights.
“This would inevitably lead to delays and ongoing breaches of human rights, which could concern life, liberty, safety and security.
“The government is also looking to shield key parts of the state machinery from being held accountable to the people.“They want to do this by limiting the ability to claim compensation for confirmed rights violations from public authorities in certain circumstances, and even want to make public authorities immune from rights challenges if they are deemed to be giving effect to legislation passed by Parliament, no matter how damaging the impact on the rights of individuals.”
One rule at home, another abroad
Extraterritorial application of the Human Rights Act“Human rights and the rule of law would be rolled back if the applicability of human rights is weakened outside the UK. This would mean the British state would have to respect human rights at home but would be free to violate them abroad. Beyond the obvious double standard, the UK’s reputation as a champion of human rights would be shredded.”
Notes to editorsThe Law Society will be responding to the government’s consultation in detail in the coming months.
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