Human Rights Act Reform: Re- construction or Destruction?

The British Constitution is a strange beast smushed together over several hundred years from gentlemen’s agreements and precedent, quite a bit of actual legislation, and at least one letter to the Times newspaper (no, really). You certainly don’t get that in America.

It is in this sense that we are unusual in the world: only four other states rely on uncodified constitutions. In theory any governing party could rewrite ours with a simple parliamentary majority, and from time to time many do add and subtract bits. Importantly for this article, that’s what the Tories are about to do.

The Bill of Rights Bill (catchy, right?) is currently making its way through the various stages of the legislative process, aiming to repeal and replace the Human Rights Act 1998. Now, the ‘98 Act made the European Convention on Human Rights enforceable domestically within UK courts. The new bill keeps these same Convention rights in place, but importantly makes some changes on the thresholds claimants must be able to achieve before making a claim, and how the courts interpret those provisions. Hopefully you’re still with me here.

Underlying the premise of the new bill is the Conservative Party’s current determination to “do something about those pesky courts”, as they occasionally throw the government a ruling that “no, you can’t just deport people before they have a chance to appeal against the decision”, or “no [government minister], you don’t have the power to implement that through secondary legislation”. This is obviously a problem if you’re a sort-of parliamentary Cruella de Vil. Not having a coat made out of dead puppies, or in this case, being able to deport plane-loads of vulnerable people regardless of appeals just won’t do!, especially if it generates a handful of bad newspaper headlines.

This isn’t great news for anyone who likes their government to have just a little bit of accountability. Judicial Review is one of the only mechanisms available to meaningfully challenge or test some decisions, and weakening the grounds on which the public are able to bring cases against legislative incompatibility with human rights is certainly a large step backwards.

As I write this, the current Attorney General Suella Braverman takes a rather different view, saying the Bill is “a national priority”, as the European Court of Human Rights’ ‘interventionist approach on rights issues potentially jeopardised democracy.”. On the other hand, the Law Society aren’t particularly impressed, stating that the old Act “strikes the right balance between the democratic powers of the executive, parliament and the courts” and that they “do not believe there is a case for the sweeping reforms proposed.”

If it feels as if the structures and normalities of politics are breaking down around us, it’s because they are. The Johnson premiership has ridden roughshod over several basic constitutional principles - the transfer of power after he could clearly no longer command the confidence of his party, the misleading of the Queen to prorogue parliament to his own ends. These are all deeply unnerving– the lack of consequences that followed each of them even more so. Now we may face a government increasingly free of judicial restraint.

In this modern age, can it be right for a major political party, perfectly content for constitutional norms to be broken by its own leadership, to further degrade the standards of accountability it is to be held to? There are practically no mechanisms allowing for the reining-in of a government midterm, especially one with a large majority. Instead, the ruling party are effectively allowed to do whatever they like, with only the promise of the ballot box at the end of a five-year term to either remove them or retain them in power. This is especially dangerous to already vulnerable groups, who are usually only a small sector of society, often concentrated into a few constituencies, and so have little punching power on polling day. If a week is a long time in politics, then five years, or several successive five-year terms is an interminable wait for those that simply cannot afford to do so. If you’re under threat of being bundled into a flight to Rwanda, waiting three years on the off-chance that another party may come into power is not a wonderful prospect. Strengthening peoples’ rights the new Bill of Rights does not.

byAlex Palmer.