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Expert blog: Do you want the good news or the bad news? Government proposals to overhaul the Human Rights Act 1998

Dr Ruth Brittle, lecturer at Nottingham Law School with research interests in children's rights, refugee and asylum law and international human rights, responds to government proposals to overhaul the Human Rights Act.

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The Human Rights Act provides courts with important powers of legal scrutiny - Dr Ruth Brittle

The good news is that the UK will remain in the European Convention on Human Rights (ECHR) system. The bad news is that if you are a criminal or behave badly, you do not deserve human rights. Apparently, this makes common sense.

This government has been keen to overhaul the Human Rights Act (HRA) after facing embarrassing headlines about a few bad cases, including foreign national criminals being allowed the stay in the UK based on their right to private and family life. These proposals are based on uncorroborated evidence and selective statistics which support the government’s anti-human rights narrative. It’s not the cases which give human rights a bad name but this government’s response to those cases.

According to Raab, writing in The Times, ‘rights come with responsibilities’ and the core message in his piece is that some people deserve human rights, others do not - as if there is some merit system where you earn points which can be exchanged for rights. He ignores the fact that the ECHR allows for balancing of competing interests including the rights of others.

The government’s focus is primarily on two rights – curtailing the right to private and family life (Article 8 ECHR) for foreign national criminals and protecting the freedom of speech (Article 10 ECHR) from ‘court-innovated privacy’ law and the ‘hyper-sensitivity’ of ‘woke’ culture. Foreign national criminals do not deserve a private or family life, thus should be stripped of this right. In relation to Article 10, on the one hand Raab says we should promote the right of people (but only certain people) to offend others, whilst on the other, he is content to curb the right to protest under the Police, Crime, Sentencing and Courts Bill. The irony of what he is proposing appears totally lost on him.

Raab seems to have forgotten the role British lawyers played in drafting the European Convention on Human Rights (ECHR). He talks about the courts ‘importing a continental European model’ which runs contrary to the British version of liberty and accuses judges of ‘slavishly’ following Strasbourg jurisprudence. This is deeply offensive to judges and lawyers who work hard to interpret legislation and common law compatibly with the ECHR and have departed from it when the interests of justice demand (eg R v Horncastle [2009] UKSC 14).

In our constitution, the Human Rights Act is an important check on excessive governmental power and provides courts with important powers of legal scrutiny.  He ignores the healthy dialogue which already exists between the Strasbourg Court and our courts and misinforms The Times’ readers that our courts have the power to ‘alter legislation’. The power in the HRA is for courts to make a declaration of incompatibility – it remains Parliament’s role to make any necessary changes for which it is democratically accountable.

Raab is determined to sift out what he describes as spurious and unmeritorious claims (which the system already does with some effectiveness) based on demonstrating ‘significant disadvantage’. He proposes to only allow remedies if a person deserves it and it is in the public interest, thus inserting a further burden on courts to evaluate a person’s worthiness to receive a remedy for a violation of rights.

The rationale for the HRA was to ‘bring rights back home’ – in other words to allow UK courts to determine cases taking into account ECHR jurisprudence, to allow for a UK interpretation of human rights and to reduce the number of cases going directly to the Strasbourg Court. Under these proposals there is a real risk that these proposals will result in a greater number of cases going directly to Strasbourg as cases will exhaust domestic remedies much earlier in the process and there will not be a right to an effective remedy in the UK in some cases.

Dr Ruth Brittle is part of Nottingham Law School's Centre for Rights and Justice.

Published on 14 December 2021
  • Category: Press office; Research; Nottingham Law School