3rd October 2021
Yesterday was the twenty-first birthday of the Human Rights Act 1998 taking full effect.
This statute gives direct effect in domestic law to rights contained in European Convention on Human Rights (ECHR).
The Act, however, may not be in effect for that much longer.
This is for two reasons.
First: the new lord chancellor and justice secretary Dominic Raab is a long-time critic of the legislation, and as a junior justice minister previously sought to get the Act repealed.
Second: there is a review soon to report that may be the occasion (or pretext) of the Act being repealed.
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How significant would repeal be?
In one way it would have to be of no effect: for the Good Friday Agreement expressly mandates the United Kingdom to ensure that the ECHR is enforceable directly in the courts of Northern Ireland.
Unless the United Kingdom seeks to breach the Good Friday Agreement then any repeal must not have the effect of making such direct enforcement impossible.
Another way in which repeal would have limited effect is that since 2000, the ‘common law’ has ‘developed’ so that domestic law is more consistent with the ECHR without needing to resort to relying on the Human Rights Act.
So, in a way, the stabilisers can now come off the bicycle – the direct effect of the ECHR has now had its beneficial impact, and we can now perhaps do without it.
And there is certainly no need for the legislation to have such a bold and (for some) provocative title: a replacement law could be boringly titled as the European Convention on Human Rights (Construction of Statutes and Related Purposes) Act.
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But the real reason why the repeal of the Act may not have a dramatic effect across the legal board is (in a stage whisper) it was never really that powerful an Act in the first place – even though it has had some impact on legal development.
For example, and unlike with European Union law, a domestic court could not disapply primary legislation for being in breach of a pan-European law.
Almost all the convention rights are ‘qualified‘ in that the government can often infringe those rights easily if it has its legal wits together.
And although there are some areas of legal practice – for example family proceedings and immigration appeals where convention rights can (and should) make a difference – these specific areas do not now need an entire Human Rights Act.
Also: there are many ways in which courts will still be able to have regard to the ECHR in interpreting and constructing legislation, even without the Act.
And as long as the United Kingdom remains party to the ECHR – and the current government says that this will not change – there will still be the right of United Kingdom citizens to petition the Strasbourg court if the United Kingdom in in breach of its obligations, as was the situation before the Act was passed.
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So: if the Act is repealed, it would not necessarily be a practical disaster.
The significance of the repeal of the Human Rights Act would be much the same as the significance of having such an Act in the first place: symbolism.
What some people put up, other people want to knock down.
If the Human Rights Act were a statue rather than a statute, Raab would want to throw it into the harbour, just for the sheer symbolism of doing so.
Splash.
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But as a matter of practical law, the general effect of repeal would not be that legally significant, especially if provision was made for it to continue to have effect in Northern Ireland and in specific practice areas.
Yet symbolism is important, rather than trivial and dispensable.
Having a statute called the Human Rights Act that expressly gives general domestic effect to our international human rights obligations and providing minimum (even if qualified) rights is a good thing in itself.
And so, even if the practical significance of repeal would not be that great, it is still a Good Thing that we have the Human Rights Act.
Perhaps this review of the Act will be as mild in its proposals as the recent review on judicial review.
Perhaps, as this blog has previously averred, Raab would be well-advised not to use his limited ministerial time on this issue instead of dealing with the legal aid and prisons crises (and on this also see former lord chancellor and justice secretary David Gauke here)
Perhaps; perhaps not.
Perhaps there will be a direct hit on liberal sensibilities and that, this time next year, there will not be a twenty-second anniversary of the Human Rights Act still having effect.
Us woke libs wud be pwned.
But, even if repeal does come to pass, those twenty-one years were good ones for the development of our domestic law.
And so if the Human Rights Act is repealed, those twenty-one years of impact on our domestic laws will not (easily) be abolished.
The Act’s memory will be its blessing.
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After repeal, those who really want to live somewhere that the ECHR still has direct effect could always move to Northern Ireland. As an added bonus, I hear there’s currently food on the supermarket shelves there, and no fuel shortage.
Back in the 1970s, a suggestion that there would come a time when Northern Ireland had stronger human rights legislation than the rest of the UK would have been met with incredulity. Which perhaps re-emphasises your frequently-made point about how very revolutionary the Good Friday Agreement was.
The whole point of the Human Rights Act is to put the ECHR into UK law. Before the act you might have to go to the European Court of Human Rights to get the a resolution of your case if UK courts did not apply it. The HRA makes this unnecessary. Repealing it is a backward step. Brexiteers surely don’t want to go back to a situation where a European Court, albeit not an EU Court, can affect UK legal outcomes? That is what repeal will do.
Ironically, before Brexit eurosceptics always complained about the effect of ECtHR rulings on UK legal independence, such as by allowing prisoners the vote. At some point during the process it must have finally dawned on them that post-Brexit the ECtHR would still apply and their hatred switched to the ECJ, which had usually worked in our favour.
I believe that the Human Rights Act, albeit not itself EU legislation, is one of the more disliked aspects of “Europe” in the minds of Brexiters and other right-wingers. I am convinced that many Brexiters voted leave in the expectation that it would fall by the wayside as part of Brexit. Two ironies rather amuse me:
First, promises to replace the Act with a “British Bill of Rights” invite one to consider which of the rights in a British Bill of Rights would we lose, or gain? Perhaps a Union Jack on the cover?
Secondly, could the electorate of the United Kingdom really vote to reduce our human rights in some substantive way? Surely that would be ridiculous.
Isn’t the problem that most people only object when the balance of human rights seems to the observer to favour other people’s human rights. Objectively considered it is hard to justify reducing human rights, particularly when attacks on “activist lawyers” are applauded by certain elements.
You ask “Secondly, could the electorate of the United Kingdom really vote to reduce our human rights in some substantive way? ”
The electorate in effect voted (combination of referendum and general elections) to end UK citizens’ freedom of movement across the EU. I’d call that one of the biggest ever losses of individual citizens’ rights. So l don’t have any real faith in the electorate voting to maintain human rights law.
Many people seem to find it hard to imagine that they could be a beneficiary of human right protection; they only see “others” having their rights protected.
I do of course share your fear Michael.
“could the electorate of the United Kingdom really vote to reduce our human rights” depends entirely upon who is covered by “our”. As the name “Human rights” suggests, there are rights belonging to everyone, and many people are sufficiently racist and xenophobic to resent everyone having the same basic rights. Even to the extent that they would be eager to diminish their own rights if that would fall even more onerously on the groups they dislike the most.
Sadly the electorate of the UK did vote to abolish our substantive rights to travel, work and live in EU member countries.
The electorate voted to leave the EU. Giving up our rights to live and work in the EU was decided by Theresa May. We could have left the EU and kept freedom of movement and/or the customs union.
I note that it is common practice for the Foreign Ministers of Western Countries, including the UK’s, to aver that it is a benefit of our way of life and a disbenefit of the Chinese (and other) regimes that we pay full attention to Human Rights. Indeed this, along with democracy, is counted as a score for our side in every international forum. Except that the recently ex-foreign minister apparently doesn’t really think so and his boss almost certainly doesn’t give a damn.
“Another way in which repeal would have limited effect is that since 2000, the ‘common law’ has ‘developed’ so that domestic law is more consistent with the ECHR without needing to resort to relying on the Human Rights Act.“
Surely any court deciding a case within the last 20 years that touched on ECHR rights would have framed it’s decision in terms of the HRA? Should the HRA be repealed, it is not clear that you could rely on this body of jurisprudence going forward. The basis of the decisions would be undermined. It is by no means clear that all the important cases which have relied on the Act would have been decided in the same way had the court only had recourse to common law and the ECHR. Not to mention the court would no longer be able to issue the declaration of incompatibility remedy. The Act is more than a symbol I think.
Symbolism works both ways. For the liberal voter (quite possibly the majority) what is the symbolism of a Tory government appearing to water down our human rights?
As you say, little practical effect immediately and the longer term direction – unlikely to repeal the intent if only for ‘staying in a job’ reasons.
Possibly Boris is playing the ‘keep your enemies closer’ game. Raab is stuffed into a non job where Boris can keep him chained up. In effect the rottweiler Raab has ‘been to the vet’. I reckon no one will waste political capital repealing human right legislation – unless Mrs Patel has need…
I’d like to know what Dominic Raab thinks the effect of repealing the Human Rights Act, and replacing it with a British Bill of Rights, would be.
Would a person’s legal rights be greater, less, or the same? Would their ability to rely upon those rights – and enforce them in court – be greater, less, or the same?
If it would make a real difference, can he please explain in detail what that difference will be.
If it won’t make a difference, is it just a symbolic rearrangement of deck chairs?
Where does The UN Declaration on Human Rights stand in UK law? Our government is a signatory and so I would hope still be bound by this even if not the human rights act