Abolition of the Human Rights Act 1998: What happens next?

Posted on 12 Nov 2020 by Morgan Buckley

Disclaimer: The views expressed below are that of the individual author.

Although the 2019 conservative manifesto seems like a distant memory amidst the ongoing COVID-19 pandemic, there are still valid concerns relating to the proposals for a British Bill of Rights and repeal of the Human Rights Act 1998, hereafter referred to as the HRA. In this piece I aim to expound on the detrimental constitutional consequences attached to the abolition of the HRA, consider the profoundly negative impacts of repealing the HRA on international human rights, discuss the potential disunion of the devolved legislature in the UK and the probable escalation of Westminster-centric policy making thus creating further disparity between the public and national politics. Furthermore, this piece aims to dismantle the concept of a British Bill of Rights by expelling the Eurosceptic myths surrounding the HRA and assessing the inadequacy of judicial tools found at common law. Fundamentally, the common law is ill-equipped to act as a substitute for the complexities of the HRA, and the abolition of the HRA will inevitably lead to significant miscarriages of justice.

The repeal of the HRA would have pernicious impacts on the current constitutional landscape. The modern UK constitution pivots upon the concept of mixed political and legal constitutional ideologies. However, the introduction of the HRA was instrumental in the formation of a mixed constitution because the HRA established significant interpretive powers which enabled the judiciary to scrutinise the legislature and crystallised, in statute, a path by which the courts could review primary legislation as well as secondary legislation. The modern mixed constitutional landscape enables the circumvention of unilateralism and political monopolism. Take for example section three, which dictates that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights” and section four which establishes that the courts “may make a declaration of that incompatibility” where legislation is found to be incompatible with convention rights. Sections three and four arguably had the effect of redressing the balance between legal and political constitutionalism by emboldening the judiciary to pursue a purposive approach when interpreting legislation. Though the extent of constitutional impacts is currently unknown, it is arguably foreseeable that the abolition of the HRA could revert the progress made by the courts and re-establish literal interpretations of legislation. Literal interpretations, although less contentious, lead to slower developments and outdated interpretations of modern life. This is especially prevalent in the field of human rights. For example, according to the Democratic Audit UK ‘How well does the UK’s democracy protect human rights and civil liberties?’ “in many areas – in particular the spheres of immigration control, national security/counter-terrorism, freedom of association and speech, and the treatment of persons with mental disabilities and other vulnerable groups – UK law has been the frequent subject of criticism from human rights expert committees and the Council of Europe”. Thus, evidencing the idea that the rights contained in common law, without judicial intervention to assure compliance with the HRA, are insufficient to deal with the ambit of modern human rights.

The normative reach of the common law is inconsequential compared to the normative reach of the HRA. The abolition of the HRA would abrogate significant personal freedoms. It would also expedite numerous miscarriages of justice at a state level. Proceeding with common law rights would signify the eradication of modern human rights in the UK and see the reversal of years of progression in the sphere of human rights and civil liberties. The UK has been instrumental in the development of these rights, therefore repudiating the Eurosceptic narrative that adherence to the HRA signifies a forfeiture of sovereignty. “The 1998 Human Rights Act is an Act of Parliament that aimed to incorporate into UK law the rights contained in the European Convention on Human Rights” and “Bring Rights Home”, therefore the Eurosceptic myth of the HRA signifying European domination is false and misleading. The false narrative was contrived by the proponents of Brexit to encourage their Eurosceptic agenda, despite the fact that the HRA and European commission of Human Rights, are not linked to the European Council- the only similarity is they share the word European in their title. In reality, the ECHR is not connected to the European council, the EU institution which the UK will depart from post-Brexit, and this distinction is fundamentally important to the debate because often politicians conflate the two to attract Eurosceptics to the favour of abolishing the HRA. Whereas, in reality, the HRA is intrinsically linked to human rights which dictate fairness in society and protect civil liberties which define our civilian existence.

The consequences following the abolition of the HRA would lead to an immediate abrogation of fundamental human rights because as stated by Lord Bingham in Watkins v Home Office and others“by enacting the HRA Parliament intended that infringements of human and constitutional rights would be protected by the Act, and parallel remedies were unnecessary” thus affirming that countless modern human rights are absent at common law because it was deemed unnecessary to replicate remedies already protected by the HRA. Lord Bingham’s assessment in Watkins exhibits the comparatively inconsequential and insufficient normative reach of the common law. Furthermore, in ‘Beyond the European Convention: Human Rights and the Common Law’ Elliott asserts that “the common law does not contain a catalogue of rights that equates to the body of rights found in the Convention” to summarise the common law is unrepresentative of the ambit of modern constitutional rights. The common law equivalent of rights contained in the HRA are superannuated which is undesirable when aiming to inform the current constitutional landscape which is much richer than in the past.

Many academics contest the abolition of the HRA on the basis that the repeal would weaken international human rights. In the article ‘What would happen if the UK withdrew from the European Court of Human Rights?’ Wagner asserts that “any justification for leaving must be balanced against the very significant signal which the UK would be sending to other states, that it has lost confidence in the European Convention on Human Rights.’ This message would tangibly affect international human rights, a consequence which would have global impacts which transcend the boundaries of the UK. Moreover, Wagner contends that ‘leaving Strasbourg would arguably leave individuals in the UK in a weaker position against the state if their rights are breached’ subsequently weakening the legal position of everyone in the UK. Despite the universality of the impacts, it is true that the repeal of the HRA would disproportionately affect those most vulnerable people in society. A trend which is acutely apparent in the currently turbulent political climate.

Another significant consequence of the abolition of the HRA is the probable severance of the United Kingdom. England’s relationship with the devolved legislature’s is already fragile and the decision to repeal the HRA would be viewed as ‘a deliberately hostile intervention’ against Scotland and Ireland who “already find themselves being taken out of the EU against its will and whose devolution settlements has the European Convention as a central hinge.” Consequently, repeal of the HRA is viewed as “unnecessarily gratuitous – act of self-harming isolationism by the UK” by Professor Conor A. Gearty FBA and many other academics opposed to the repeal. The decision to repeal the HRA would create strong divisions between England and the devolved nations, thus emboldening the issues raised by Brexit, and accelerating the disunion of the UK. The repeal is a potential catalyst for a second Scottish referendum and could signal a vote of independence given the turbulent constitutional changes recently and frequent hostility towards Scotland. Additionally, “repeal would destabilise the Good Friday Agreement and further damage relations with the Republic of Ireland, already under strain because of Brexit” thus further isolating England from the devolved nations. Fundamentally, “the Labour government that enacted the Human Rights Act embedded it in the devolution arrangements’ and although each model is different, they share a commitment to human rights as a central theme.” As a result, the HRA performs a role as the glue which holds the union together. Without the HRA, there is an increased likelihood that the devolved nations will view this hostility as a motive to exit the union. Furthermore “of the three [devolved nations], only Wales voted Brexit with England – the other two were unequivocal Remainers. For Westminster now to impose repeal of the Act would be like throwing further petrol on the raging fire of alienation that Brexit has already started.”

The abolition of the HRA 1998 would have inauspicious legal and political consequences. the repeal of the HRA could weaken international human rights and would undoubtedly leave individuals in the UK in a weaker position if their human rights were breached. At a national level, the abolition of the HRA would be a clear act of animosity towards Ireland and Scotland, both of which have a shared commitment to human rights interwoven into their devolved arrangements. Finally, human rights protected at common law are exiguous, and the common law framework is ill-equipped to maintain the current standard of human rights protection offered by the HRA. Consequently, the common law offers a poor substitute for the protections offered by the HRA, and the government’s choice to repeal the HRA would be the choice to knowingly repudiate fundamental human rights.

Tags: human_rights_act / constitutional_law /

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