The risk to human rights legislation and specifically the Human Rights Act seem to have risen in past week. This concern has come about because of some equivocal statements by ministers in a recent House Of Commons debate. Dislike of the HRA by some members of the government is well known and there have been plans to abolish it for some time. They seem to have been kicked into the long grass because of the all consuming nature of the Brexit process and also because it has proved difficult to introduce a fresh piece of legislation – HRA2 we might say – that would get through parliament.
The recent row has emerged because a junior minister, Edward Agar, said the HRA ‘would be reviewed post Brexit’. SNP politician Tommy Sheppard was quoted as saying at the end of a 90 minute debate:
[he] felt he was “left without the unequivocal and categorical assurances I was seeking, in terms of the commitment to the existing Human Rights Act and the protection that it affords” Source; RightsInfo 13 February 2019
So it seems that once we leave, a review of the Act and its possible replacement is a possibility. This story has a long genesis going back to when David Cameron was prime minister. Theresa May was a keen abolitionist as home secretary.
The problem that some politicians have with it are several. Firstly, a failure to appreciate the positive effects it has had on various issues large and small. In countless cases, involving individuals and their dealings with government or local authorities, the act has been a key element in the defence of their rights. Only rarely do these get reported and frequently, the role of the act in the proceedings is omitted.
Secondly, there is a belief that British rights are somehow superior to anything Europe could do and go all the way back to Magna Carta. The imperfections of the British system are brushed aside. Before the HRA was in place there was a steady procession of litigants going to Strasbourg to get justice denied them in the UK. These judgements were often embarrassing to the British legal system.
Thirdly, the issue of human rights has got caught up in the Brexit debate and a belief among those wishing to leave that anything with a European tag to it is to avoided. As Anthony Lester QC puts it:
Because the Human Rights Act use the [European] Convention rights as a substitute for homegrown constitutional rights, it arouses the hostility of euro sceptics, our system has come under increasing onslaught, not from activist judges but from political opportunists supported by right-wing newspapers that have made ‘human rights’ a dirty word. Five Ideas to Fight For, One World, 2016 p39
Finally, and perhaps crucially, the HRA alters, in a quite fundamental way, the balance of power in our society. For the first time in our history, the people have a set of rights. Since we do not have a written constitution, this is a significant development. It is perhaps not surprising that those – especially from the privileged classes – who enjoyed the power and influence it gave, feel a little resentful at its loss.
What happens after Brexit we will have to see. Perhaps there are people who think coming out of Europe will mean coming out of the Convention. They are in fact two different bodies and the Convention stems from the Council of Europe which we entered long before we entered the EEC. It will still be in place. It is possible that some will be disappointed to discover that we are still in the Council post March 29.
The local Amnesty group will, along with Amnesty International itself, be keeping an eye of events and will be campaigning if the plans to repeal the act become real.