UK Human Rights Act is at risk of repeal 鈥� here's why it should be protected
This article by , Lecturer in Constitutional and Administrative Law, and Public Procurement, at the Law School is republished from under a Creative Commons license. Read the .
There have long been attempts to 鈥渟crap鈥� the 1998, which incorporates the European Convention on Human Rights (ECHR) into UK law. But while none have gained traction to date, parliamentarians have recently that the government could be wavering in its commitment to the act post-Brexit.
The House of Lords鈥� EU justice sub-committee said in January that to see the government change the wording of the it agreed with the EU, which sketches out a non-binding vision for what the UK鈥檚 relationship with Europe will look like after Brexit.
In its draft form, the declaration said that the future relationship should incorporate the UK鈥檚 鈥溾�� to the convention. However, by the time the final version was published in November 2018, that had changed to a commitment to 鈥溾�� of the convention.
The committee wrote and received a , the parliamentary under-secretary of state for justice, who stated that the government would not repeal or replace the act while Brexit is ongoing but that 鈥渋t is right that we wait until the process of leaving the EU concludes before considering the matter further鈥�.
, committee chairman Helena Kennedy said that this was a 鈥渢roubling鈥� reply, noting: 鈥淎gain and again we are told that the government is committed 鈥� but without a concrete commitment鈥�.
of the act say that reforms are needed to 鈥渞estore鈥� the supremacy of the UK courts, by limiting the interference of the in domestic issues, such as . This has long been a key issue for Conservative governments, which have wanted to . The idea is that the Human Rights Act could be replaced with a which would allegedly give the UK more control over the laws it implements.
The most cited criticism is that the act protects terrorists and hate preachers, such as , who, at a time when he was advocating radical Islam and violence within UK cities, initially could not be deported on grounds that doing so would have contravened his right to .
The successes of human rights laws are less frequently celebrated, however. The act was relied upon by , and the victims鈥� right to life, in order to secure a second inquiry. Individuals pursuing their have used it to enforce their right to wear religious symbols at work. used to secure an inquiry, which led to major improvements in accountability and public safety. And it has helped those seeking , as well as British soldiers in their .
Dispelling the myths
The problem is that there are several misconceptions fuelling the drive to change the Human Rights Act. First, the ECHR is unrelated to the EU. But mistaken links between the two are causing misplaced animosity towards the convention. The convention and were regularly confused as being part of the EU during the . Though the UK is due to leave , it is not leaving 鈥� and does not necessarily have to leave 鈥� the . The council predates the EU, and has a (47 member states compared to the EU鈥檚 28). While the EU is concerned with matters such as the single market and free movement of people, the council addresses issues in relation to human rights and the rule of law.
Another point causing problems is the notion that the UK needs to move towards a supposedly 鈥渕ore British鈥� and 鈥渓ess European鈥� understanding of human rights. that in the aftermath of World War II the convention was actually partly written by the British. It was advocated by and co-written by .
Britain was not just a supporter of the convention, but a leader in co-drafting the rules, and ensuring greater enforcement at a supranational level, via the European court. Furthermore, the UK was the very first country to ratify the convention in 1951. The irony is that the Conservative party is now questioning the role of human rights when it was the one that drafted the convention in 1950.
Even if the Humans Right Act was reformed or repealed now, the UK would still be subject to the convention . UK citizens would still have access to the protections that the convention has introduced.
If the act is of repeal, lessons must be learnt from Brexit. There needs to be an open and honest debate about what the act and convention actually do, and what they have achieved.
If, in repealing the act and introducing a 鈥溾��, the UK leaves the Council of Europe, it could cause a dangerous , and upset the devolution settlement. It could also remove another layer of international protection for the UK鈥檚 constitutional values. To do so at a time when much uncertainty remains (following the UK leaving the EU) would have far reaching consequences for against the state.
Publication date: 12 February 2019