Why we need to save the Human Rights Act

by Natalie S, Camden & Islington Left Unity

The Conservative Party’s long standing commitment to repealing the Human Rights Act 1998 was reflected in their manifesto, with its stated commitment to “scrap the Human Rights Act and curtail the role of the European court of human rights.” Following their election, and with Michael Gove appointed as Secretary of State for Justice, they have unveiled plans to repeal the Act “within 100 days” and details are expected to be announced in the Queen’s speech on 27 May.

The effect of the Human Rights Act is to bring the provisions of the European Convention of Human Rights (ECHR) into domestic law. As well as making the rights enforceable in domestic courts, it creates an obligation on public authorities to act in compliance with them. This is in contrast to the situation before its introduction, when it was necessary to take a case all the way to the European Court of Human Rights in Strasbourg in order to gain redress, with all the delay that entailed.

Holding the state to account

Since it came into force in 2000, the Human Rights Act has played an important role not only in protecting vulnerable individuals from state abuses of power, but also in developing new ways of holding public authorities to account and enforcing social rights. For example, the right to private and family life (Article 8 of the ECHR) has been used to prevent an elderly woman from being separated from her husband of 65 years when she became unwell and had to be moved into a care home, and to challenge the failure of local authorities to provide proper services to assist disabled people in their homes.

A number of successful claims under the Human Rights Act have been brought by victims of sexual assault and rape, alleging a breach of Article 3 (the right not to be subject to torture, inhuman or degrading treatment) based on failures of police and/or prosecutors within the investigative process. This includes the high profile case brought by two survivors of sexual assaults by the “black cab rapist” John Worboys, who used date rape drugs to attack dozens of female customers. Although Worboys was eventually convicted in relation to 12 of these attacks, failings in the police investigation meant that this happened much later than it would have done, and the court found that these failings amounted to “inhuman and degrading” treatment. Most recently, Hampshire Police paid £20,000 in compensation and issued an apology to a rape victim they had falsely accused of lying, after a claim brought under the Human Rights Act.

Without the Human Rights Act, these women would have had no remedy in domestic law. Another recent example of this situation, this time in the context of domestic violence, is a claim brought by the family of Joanna Michael, who was murdered by her ex-boyfriend after having made a 999 call to police reporting that he had just turned up at her house making threats towards her. The call was downgraded (i.e. not treated as a priority) and when officers attended then house 22 minutes later she was found dead.

In a Supreme Court hearing to consider whether the family’s claims should be allowed to go ahead, the majority of judges decided that the claims brought in “negligence” (i.e. domestic, non-Human Rights Act claims) could not, despite detailed arguments on this issue put forward by the organisations Refuge and Liberty in addition to lawyers representing Joanna Michael. However, they allowed the claim under the Human Rights Act for the breach of Article 2 (the right to life) to continue.

This means that, as the law stands, the Human Rights Act will often be the only way for bereaved families like Joanna Michael’s to have the chance to hold the state to account, in domestic courts, for any failings that may have contributed to the death of their loved one. It also demonstrates the fact that human rights are about more than just freedom from interference by the states – rather the state has a “positive obligation” to protect the right to life under Article 2. The right to life under Article 2 has also been very important in relation to deaths in custody, whether in police, prison, immigration or psychiatric detention, allowing the scope of the inquests held following the deaths to be wider than they would previously have been.

After the Act

These are just a few of many examples where the human rights have allowed ordinary people to hold the state to account – and give an indication of why the Tories are so keen to make this more difficult. But crucial questions as to what would happen following the repeal of the Human Rights Act remain unanswered.

The first issue is: which of the rights would be protected in the “British Bill of Rights” expected to replace it, and to whom would they apply? Despite the commission on the Bill of Rights being set up over four years ago in March 2011, the contents of the new bill remain unclear. As many human rights advocates have asked, looking at the list of rights under the ECHR – the right to life, the right to freedom from torture and from slavery and forced servitude, the right to liberty, the right to a fair trial, and so on – which of these would you discard?

The second question is whose rights would be protected. There is a clear danger that the answer will be: not everyone’s, and not to the same degree – hence the focus on a “British” bill of rights. Much of the rhetoric about human rights is deliberately targeted against “foreign criminals” and “terrorists” to suggest that if someone is a not a UK citizen, they should not be entitled to the same protections. The scare stories tend to be based on deliberate misinformation, such as Teresa May’s famous claim that an “illegal immigrant” could not be deported “because he had a pet cat”. In fact, the individual was allowed to stay in the UK because the Home Office had not properly applied its own guidance – his cat was not the reason for this decision.

It is perhaps the attack on these individuals using the Human Rights Act to try and prevent deportation, who are some of the least popular people in wider society, that should worry us most. Once the universality of human rights is removed, and the government can decide who they consider desirable enough to be granted some or all of these rights, nobody’s rights are safe. This was, in fact, the very reason that treaties introducing universal human rights were signed in the aftermath of the Second World War was that the horrors of the fascist regimes had shown just how dangerous it was to allow this decision to rest with the government.

Another question is whether Britain will remain within the European Convention of Human Rights. If it does, then cases can still be brought against it in the European Court of Human Rights and it can still be ordered to compensate victims for breaches of their rights (albeit only those who are determined enough, and adequately represented, to fight their case all the way to Strasbourg). In addition, it can still have its laws declared incompatible with the Convention. The manifesto promise to “break the formal link between British courts and the European court of human rights” reflects an intention to begin treating the court’s decision on these issues as merely advisory. But in reality, under the current system the court cannot force a government so change a law.

Extreme step

One of the biggest conflicts between the British government and the ECHR over the past 15 years has been the issue of prisoner voting rights, with the blanket ban on voting for absolutely any prisoner who is serving a sentence on the day of the election being found to breach a protocol to the ECHR that deals with free and fair elections. Cameron has shown his utter contempt for the idea that this vulnerable section of the population could be incorporated back into mainstream society, stating that the idea of prisoners’ votes makes him feel sick. Yet the pressure to change the law remains, and will not disappear simply because the Human Rights Act is repealed.

It is therefore not difficult to see how the impetus, following any repeal of the Human Rights Act, would be to go the whole way and withdraw from the Council of Europe. Academic Philippe Sands, who served on the commission for a Bill of Rights but ended up opposing it, has reported that three of the four conservatives appointed to the body “actively wished” for the UK to leave the ECHR.

To understand just how extreme this step would be, the only other government to have withdrawn during peacetime Greece under the military junta of 1967-74. Currently, the only non-member European states apart from the observer Vatican City are Kazakhstan and Belarus – both countries that lack free and fair elections, and have a terrible record of cracking down on dissent and preventing freedom of expression.

The government’s stock response when confronted with these issues is that Britain introduced human rights to the rest of the world, and does not need a foreign court for guidance. Putting to one side the drastically different reality of the role that Britain has played abroad and in relation to minorities at home, it is necessary to remember that steps to withdraw human rights protections take place in the context of a sustained assault on civil liberties, including surveillance of protestors, mass snooping on data, and restriction of legal aid and the right to challenge public authorities by judicial review. It is also accompanied by a package of austerity cuts which have seen Britain recently become the first country to face a UN enquiry on disability rights violations. No government can afford to be complacent about human rights, least of all one which is now unveiling a further round of even deeper and more extreme cuts.

Repealing the Human Rights Act could be difficult for a number of legal and constitutional issues, because compliance with the ECHR is written into the Good Friday agreement and the Scotland Act, or even because some Conservative backbenchers are not convinced of such an extreme step. We cannot rely on this to prevent its repeal, but more importantly, we need to make the case for universal rights to everyone, no matter how marginalised or vulnerable.

So what practical steps can we take to save the Human Rights Act?

• Spread the word on social media, with the hashtag #saveourHRA and #ActfortheAct – and see resources such as rightsinfo.org for more information about human rights
• Sign the petition against repeal here and for a referendum on repeal here.
• Join the demonstration “The Great British Right-Off! – Protest for the Human Rights Act” on 30 May 2015, 1pm in Parliament Square, or demonstrations in local areas.