Kevin Donoghue reviews Tory government proposals to replace the Human Rights Act.
This week Justice Secretary/ Lord Chancellor Dominic Raab unveiled proposals to replace the Human Rights Act with the long-awaited “bill of rights”, which, he claimed, “reflect the government’s enduring commitment to liberty under the rule of law”.
Steve Reed MP, the shadow justice secretary, said the Lord Chancellor did this as a distraction from the “avalanche of corruption” that had overwhelmed the Conservative (Tory) government.
It’s easy to see why.
Raab’s announcement came on the morning of the disastrous Plan B vote, and when the media is consumed with various Conservative Party scandals, including:
- fallout from last year’s No.10 Christmas parties
- the Owen Paterson MP lobbying story
- allegations that Boris Johnson lied to Lord Geit’s investigation of his flat refurbishment
- etc.
Dominic Raab- Human Rights Hatchet Man
But the Lord Chancellor also has his own agenda.
Dominic Raab has an interesting background in human rights law. His official government profile page reassuringly says:
He also spent time on secondments at Liberty (the human rights NGO) and in Brussels advising on EU and WTO law.
And yet, despite this, he once said:
I don’t support the Human Rights Act and I don’t believe in economic and social rights.
Unlike his government’s profile page and his comments on announcing the new proposals, this statement appears closer to the truth. It makes Raab the perfect person to fulfil the Conservative Party’s wishes.
Attacks on the Human Rights Act have long been a feature of Tory party campaigns. David Cameron’s administration proposed replacing it with a “British Bill of Rights” during his 2010 general election campaign, and it was part of the Conservative’s 2015 election manifesto.
It was also used as one of the main arguments for Brexit – to “take back control” from the European Court of Human Rights, limit asylum claims, and immigration.
Impact of the Tory Government’s Proposed Bill of Rights
But, as Martha Spurrier of Liberty eloquently points out, Raab’s proposals for a new bill of rights will erode civil liberties by “rewriting the rules so only the government can win”.
The proposals will effectively destroy claimants’ access to justice in human rights claims due to:
- a new “permissions” stage. This is designed to filter out claims and requires claimants to show that they have suffered a “significant disadvantage” before bringing a claim to court.
- preventing certain people from claiming compensation. The courts will be required give “greater consideration to the behaviour of the claimant and wider public interest”. This will create a system where provable victims of human rights abuses are denied compensation due to issues in their past. In this regard, it is like the unfair Criminal Injuries Compensation Authority scheme, which denied a rape victim compensation because of her criminal record.
- “corrective legislation” to shut down future rights of action. This would have the effect of allowing ministers like Raab “to correct court decisions through secondary legislation, which does not have to be subjected to scrutiny or votes in parliament.”
Support for the Human Rights Act
This is all so unnecessary. The Human Rights Act has been the law of the land since 1998. It is a respected cornerstone of our legal system. Eight years ago this week I wrote that:
The Declaration of Human Rights may be of pensionable age, but that’s no reason for it to be retired.
And, as Sir Peter Gross said in his report of the independent review of the Human Rights Act:
It is our view that the Human Rights Act works well and has benefited many.
The Effect of Current Laws on Human Rights Claims
Existing laws already make it hard to sue the State. The State enjoys Crown immunity under the Crown Proceedings Act 1947, the police are mostly protected from negligence claims, etc. These protections for the government and police come on top of recent changes to:
- judicial review law
- civil procedure
- legal funding
which mean that Human Rights Act claims are relatively rare in practice.
Impact of the Human Rights Act
The Human Rights Act stands as a legal and justifiable way to bring claims despite these restrictions. This matters to:
- individual claimants
- society as a whole
- agents of the State (like the police)
because, as my colleague Daniel Fitzsimmons shows, without these claims the police are not held to account.
The government’s proposals to replace the Human Rights Act mean that, for example, people will be wrongfully held in jail without recourse.
And, if the proposals are adopted, many other innocent victims of police and State misconduct will lose the right to bring claims. Examples of my firm’s clients who would struggle to get justice if the proposals are adopted include:
Mr Andrei was falsely imprisoned by the police. We helped him claim compensation under the Human Rights Act for a breach of Article 5 of the European Convention on Human Rights – the right to freedom and security (enacted here under s.6 Human Rights Act 1998), among other things. With my firm’s help Mihai got:
- a formal written apology
- an explanation of what went wrong
- £5,000 compensation.
The Metropolitan Police wrongfully executed a search warrant at Mr Mirvais’ home.
Among other things, we argued breaches of Articles 5 and 8 of the European Convention on Human Rights (a breach of section 6 of the Human Rights Act 1998). With our help he was:
- told what went wrong and why
- awarded valuable compensation, which he was legally entitled to claim.
Peter and Tina
Peter and Tina’s adoption of a child was scuppered by the personal, probably jealous, motive of a serving police officer. With our firm in their corner, they exercised their rights under Article 8 (Right to Privacy and home life) to secure:
- an apology
- valuable compensation for the significant harm caused.
Thankfully, the adoption proceeded as a result of their brave decision to bring legal action against the police. They will enjoy a well-deserved family Christmas this year.
Justice was done in these cases because of the Human Rights Act and our clients hoped that the police learned lessons as a result. In this way, we all benefit.
Permanent Changes to Human Rights Law
The coronavirus has made us all more aware of our human rights. Among other things, mask mandates, lockdowns, and vaccine certificates have been challenged on the grounds that they infringe our human rights. One Conservative MP has even compared Plan B to Nazi Germany.
On Tuesday, 99 Conservative MPs rebelled against vaccine certificates with such thoughts in mind.
But it is a safe bet that they will vote Raab’s “British bill of rights” through without much thought.
This would be a grave mistake.
Members of Parliament and their constituents should consider that Plan B and the other things are temporary measures to deal with a pandemic. The Lord Chancellor’s unnecessary proposed changes will be (effectively) permanent.
Government Human Rights Abuse
Dominic Raab claims that:
one of the consistent complaints we hear from the public is that human rights can be subject to abuse.
It appears that by “abuse” Mr Raab means people like you and me exercising our constitutional rights, such as the right to free speech, to challenge the Government.
It is important to note that Mr Raab is not alone in his thinking. His dangerous proposals supplement “the authoritarian, protest-crushing proposals” in (Home Secretary) Priti Patel’s Policing, Crime, Sentencing and Courts Bill, which is currently moving through Parliament.
The Tory Government’s solution to citizens “abusing” their rights is to change the law. Ask yourself, who is the real abuser?
Kevin Donoghue is the solicitor director of Donoghue Solicitors.