Lawyers, campaigners and charities say the government’s plans to overhaul the UK’s flagship human rights legislation will make the state less accountable and amount to a power grab by ministers.
Ministers are proposing to replace the Human Rights Act 1998 with a British Bill of Rights after Prime Minister Boris Johnson promised reform in the Conservative Party’s 2019 election manifesto.
Dominic Raab, justice secretary and deputy prime minister, said in December the changes would strengthen parliament’s role as the ultimate decision maker and bolster rights such as freedom of speech.
However, lawyers and campaign groups have expressed concern over the proposals, saying the changes will limit the duties of public authorities to protect people’s human rights and make it harder for individuals to go to court over alleged violations.
“The government is introducing changes that would make the state less accountable,” said Stephanie Boyce, president of the Law Society of England and Wales, which represents lawyers. “It undermines a crucial element of the rule of law, preventing people from challenging illegitimate uses of power.”
The Human Rights Act 1998 was introduced by Tony Blair’s government to allow Britons to bring human rights cases to UK courts rather than going to the European Court of Human Rights the man in Strasbourg.
The legislation has been criticized by Tory MPs for encouraging what they see as bogus legal challenges against the government.
The 2019 Tory manifesto said the party would “update” the 1998 legislation to “ensure there is a fair balance between the rights of individuals, our vital national security and effective government”.
But Liberty, the campaign group, said the changes would establish a hierarchy in which some people would be seen as “deserving” of rights and others not.
“This human rights law reform plan is nothing more than a power grab by a government that wants to put itself above the law,” said Gray Collier, director advocacy at Liberty.
“Their proposals will make it harder for ordinary people to stand up for their rights and hold public bodies to account when those rights are violated.”
At a public consultation on Britain’s Bill of Rights in December, the government presented plans to crack down on attempts by foreign-born criminals to resist deportation from the UK by invoking the 1998 legislation.
The ministers also presented plans to limit the positive obligations imposed on public authorities by Article 2 of the legislation, which protects the right to life.
Raab told the House of Commons Justice Committee in November that the positive obligations imposed by Section 2 meant that police forces had to regularly issue so-called Osman threats to the lives of criminals about the Imminent death threats they faced from rival gangsters.
The government consultation found England’s four largest police forces issued 770 life-threatening notifications in 2019, which had a ‘huge impact on police resources’.
However, Liberty said the focus on Osman’s warnings ignored the much wider benefits of Section 2 of the 1998 legislation over public authorities, adding that it compelled police forces to carry out investigations into deaths in custody.
He also pointed out that the families of the 96 Liverpool Football Club supporters who died in the Hillsborough disaster in 1989 relied on Article 2 to secure a new inquest, which concluded in 2016 that the supporters had been unlawfully you are beautiful.
Meanwhile, lawyers have expressed concern over government proposals to limit the ability of judges to strike down secondary legislation introduced by the government if it is found to violate human rights.
In the future, if a court decided that such legislation violated human rights laws, a judge would only have the power to issue a declaration of incompatibility: which would be embarrassing for ministers but would have no legal force.
“I fear there is a weakening of judicial authority,” said Jonathan Fisher QC, a lawyer who sat on a government-backed commission that looked into the UK bill of rights case.
Charities have expressed doubts about government proposals that people taking legal action over alleged human rights abuses would face a new hurdle as the courts would have to allow their prosecution.
“It will make it harder to enforce their rights in court,” said Lee Marsons, a researcher at the charity Public Law Project.
Others have raised questions about how the government wants to reform the obligation that obliges UK courts to take into account decisions of the European Court of Human Rights.
Lord Robert Carnwath, a former Supreme Court justice, said the proposals to not give undue weight to Strasbourg rulings would in effect mean that UK courts would draw on whatever international case law they saw fit. “The court receives no guidance as to which, if any, it should prefer, or by what criteria,” he added.
Fiona Rutherford, chief executive of charity Justice, said she was “deeply concerned” by the government’s proposals, adding that they would “tip” the balance in favor of the executive.
However, Richard Ekins, a law professor at Oxford University who leads the Judiciary Project at the Policy Exchange think tank, welcomed some of the government’s consultation proposals.
He said in his response that the government’s goals of tackling the misuse of human rights law were “well taken”, adding that any new bill of rights should restrict the power of judges and must ensure “to avoid tacitly allowing the British courts to lash out”. .
The Justice Department declined to comment on the government consultation.