UK: Why the Human Rights Act is under review

What's the story?

It’s been described as a “criminals’ charter”, responsible for protecting everyone from terror suspects to drugs barons.

Others have pointed out that it also protects families spied on by their local council.

Few pieces of legislation are as controversial as the Human Rights Act (HRA) and during last year’s general election Boris Johnson pledged to make some changes.

It was a Tory manifesto pledge to "update" the 1998 Act, which allows UK nationals to rely on the European Convention of Human Rights (ECHR) in domestic courts.

Changes to the HRA could make it harder to prosecute British soldiers for alleged crimes committed abroad and curb judges' ability to block the deportations of foreign criminals.

Former Court of Appeal judge Sir Peter Gross has been appointed to lead the independent review.

The Government wants to examine whether the HRA is working effectively.

A panel, led by Sir Peter, is expected to evaluate whether UK judges are being drawn into policy matters, traditionally decided by politicians, and will report its findings by next summer.

Ministers see the review as part of a wider constitutional reappraisal, examining the relationship between the judiciary, the executive and Parliament.

Justice Secretary Robert Buckland recently described prisoner votes – mandated by the court in Strasbourg but opposed by the government – as a "difficult case" relating to the HRA.

And writing in the Telegraph, he said the HRA allowed courts to rewrite laws passed in Parliament to ensure they comply with the ECHR.

He said this had "not always been limited to minor, uncontroversial technical changes".

He said it was worth asking whether "such important and controversial decisions should be returned to Parliament".

Labour described the review of the human rights law as "bonkers".

Shadow justice secretary David Lammy said: "It is bonkers that the government is prioritising launching an attack on human rights in the middle of the coronavirus pandemic."

He added: "There is no need for a review into the rights and freedoms that underpin our democracy and all of us enjoy."

The HRA was introduced by Tony Blair's Labour government in 1998 to “bring rights home”.

It incorporated the rights and liberties enshrined in the ECHR into domestic law.

Its implementation meant that British courts could deal with any breaches in the convention without the need to go before judges in Strasbourg.

However, the legislation quickly came under intense criticism, following suggestions that it was open to abuse by various litigants.

The most highly cited case is that of radical Islamist cleric Abu Qatada who initially could not be deported on grounds that doing so would have contravened his right to freedom from torture.

In 2006 Mr Blair complained that a judgment about a group of Afghans who had hijacked a plane was an “abuse of common sense”.

It came after an immigration court ruled that the nine asylum seekers had won their bid to stay in the UK.

Under Article 3 of the European Convention, they could not be sent back for fear of “inhumane or degrading treatment” in Afghanistan.

Mr Johnson is not the first prime minister to consider amending the legislation.

In 2007, Labour began to consult on building on the HRA to create a Bill of Rights.

Gordon Brown’s Government mooted the possibility of introducing specific “duties” or “responsibilities”, such as the duty to obey the law and pay taxes, that would sit alongside the rights already guaranteed.

Meanwhile, Theresa May pledged that the Conservatives would scrap the HRA in 2013.

Mrs May argued that Britain “should deport foreign criminals first and hear their appeal later”.

“At the moment, the system is like a never-ending game of snakes and ladders, with almost 70,000 appeals heard every year,” she said.

The review is underway during the tensest time of trade deal negotiations with the EU.

Brussels’ chief negotiator Michel Barnier has previously warned that divergence from the ECHR was a red line for the bloc.

“If the United Kingdom’s position does not move, it will have an immediate and concrete effect on the level of ambition of our cooperation, which will remain based on international conventions but will not be as ambitious as we wish,” he said in March.

There has been some suggestion that the Prime Minister could make a major compromise on the HRA in order to shore up security ties with the EU after Brexit.

In the past few weeks EU sources said a compromise could include a commitment by the government not to “materially alter the spirit” of the HRA.

However, any agreement to keep Britain tied to European human rights rules after Brexit will cause a rift with Tory MPs back home. A huge appeal of the Brexit promise is to take back control of our laws.

Amid the rubble of a Europe destroyed by fascist Germany and with Joseph Stalin exerting a totalitarian grip on nations in the east and centre of the continent, politicians including Sir Winston Churchill realised the need to enshrine human rights.

Convening in 1948, The Congress of Europe declared: "We desire a Charter of Human Rights guaranteeing liberty of thought, assembly and expression as well as right to form a political opposition. We desire a Court of Justice with adequate sanctions for the implementation of this Charter."

Britain – a beacon of liberty – was instrumental in implementing those high held ideals.

So perhaps it is natural that later the HRA should be passed to enshrine those values in British law.

Yet, unlike its continental neighbours, Britain doesn’t have a Bill of Rights written into a constitution.

It means judges are asked to decide on issues that many believe are matters for Parliament.

The review of the HRA is welcome after becoming a constitutional muddle – even if it started with the best of intentions.



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