Human rights lawyers across the UK rejoiced recently as Dominic Raab’s Bill of Rights Bill appeared to be consigned to the dustbin of history. At the same time, recent analysis from Alice Donald and Joelle Grogan revealed the UK’s record at the European Court of Human Rights to be the envy of many larger states in the Council of Europe. But before we break out the champagne and toast this golden age of human rights protection, we should take stock. An array of legislative measures, some in the pipeline and others in force, look set to undermine the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR) everywhere from the prohibition on slavery, to freedom of association and expression. The HRA may have fended off the coup de grace of the Bill of Rights Bill, but is it still at risk of death by a thousand cuts?
The HRA was designed to have an ongoing impact on legislation and the legislative process in different ways. Under s.19 of the HRA, ministers introducing legislation to Parliament are obliged to make a statement on whether the Bill is compatible with the ECHR. It is extremely rare for a minister to make a statement that a Bill does not comply with the ECHR (I can only find 3 previous examples: House of Lords Reform Bill 2012 (dropped), Local Government Act 2000and the Communication Act 2003). The Illegal Migration Bill, currently making its way through Parliament, joins this rare company because the ministers responsible for its introduction have stated that they did not believe it was compatible with the ECHR. While this is unusual in itself, the extent to which it flouts the ECHR is concerning and unprecedented. The Bill seeks to undermine the most widely accepted protections in human rights law – the prohibition on slavery, servitude and forced labour. The international community has taken many positive steps over the past decades to tackle modern slavery and human trafficking, through the Palermo Protocol, the European Convention on Action against Trafficking in Human Beings, the application of Article 4 of the ECHR and, in the UK specifically, adopting the Modern Slavery Act. The Illegal Migration Bill aims to disapply many of the protections developed for victims of modern slavery and operationalised in the Modern Slavery Act. It aims to give the Home Secretary the power to remove migrants irrespective of whether they claim to be a victim of modern slavery or human trafficking. Regardless of how one feels about potential victims of slavery and human trafficking, the Bill also allows people actually found to have been victims of modern slavery or human trafficking to be deported during the limited period of “reflection and recovery” granted to them under the law. This 30-day period is mandated under international law that the UK has ratified and it is meant to allow a victim to come to terms with what has happened and so provide some stability after unimaginable trauma.
Another way the HRA is designed to have ongoing impact is through the requirement that all legislation, pre- and post-HRA be interpreted in light of the ECHR. However, the Illegal Migration Bill, in clause 1(5), specifically prevents the courts from interpreting the Bill in a manner that is compatible with the ECHR by disapplying s.3 of the HRA. This is part of a concerning new trend of insulating specific pieces of legislation from being interpreted in light of the ECHR, curtailing its impact on important areas of law, such as immigration and penal justice. Clauses 42-44 of the new Victims and Prisoners Bill, currently before Parliament, seeks to disapply s.3 of the HRA from different pieces of sentencing legislation, preventing them from being interpreted in a way that was compatible with the ECHR. It is worth bearing in mind how human rights law interacts with sentencing law. It provides some protection against arbitrary detention, grossly disproportionate sentences and irreducible life sentences. It guarantees a fair, impartial sentencing hearing and that the executive will not involve themselves unduly in the judicial function of sentencing. If passed, this Bill would prevent several sentencing laws from being interpreted in a way that would protect people against arbitrary detention, disproportionate sentences and fair hearings related to their sentences. The courts admittedly still have the “nuclear option” of issuing a declaration of incompatibility against these pieces of legislation, indicating to the government that they consider the legislation is capable of operating incompatibly with the ECHR. But courts are increasingly timid in utilising this power, and by only permitting this nuclear option, the government seems intent on provoking a showdown with the courts. These are just Bills at the time of writing and these provisions could be amended out of existence, but they are reflective of a deeper trend in UK law. A trend of siloing off different areas of law and stripping back human rights protections applicable to them.
The provisions of the ECHR that guarantee effective investigations into violations of the right to life and the prohibition on torture have also been challenged in recent legislative developments. The Overseas Operations Act 2021 introduced a presumption against prosecution of current or former armed forces personnel for acts including murder, manslaughter, the infliction of grievous bodily harm and arbitrary detention committed in the course of duty outside the UK more than five years ago. More recently the Northern Ireland Troubles (Legacy and Reconciliation) Bill was introduced to Parliament. Under clause 18 of the Bill, the UK could offer conditional immunities from prosecution for offences that violate the right to life and the prohibition on torture, inhuman and degrading treatment. Clauses 34-38 would bar investigations into events during the ‘Troubles’ by any organisation other than a newly created “Independent Commission for Reconciliation and Information Recovery” and the Bill would halt inquests into Troubles related deaths in certain circumstances. It goes without saying that where someone is killed or tortured by state agents, an effective investigation into the events should be undertaken. Yet, investigations into such incidents have been treated differently and “less rigorously” than cases not involving state agents in Northern Ireland and rather than address this problem, the UK is passing legislation that makes undertaking such investigations more difficult or prevents it altogether.
The protections of the right to freedom of expression and association have also taken a massive backwards step with the recent adoption of the Police, Crime, Sentencing and Courts Act 2022 (PCSCA) and the Public Order Act 2023. The PCSCA gave police more latitude to impose conditions on protests, made it is easier for police to arrest and charge people with breaching conditions imposed on protests and increased the penalties for breaching public order law, with higher fines and longer prison sentences. Non-violent public order offences have traditionally attracted small fines and short custodial sentences, but under the new legislation, non-violent acts of protest can be tried by indictment and subject to custodial sentences of up to 10 years and substantial fines. This includes, for example, causing damage to memorials through acts of protest and a newly created offence of intentionally or recklessly causing public nuisance. A conviction for the latter offence recently led to a Just Stop Oil protestor, who scaled the Dartford bridge causing disruption to traffic, being sentenced to 2 years and 7 months in prison for a non-violent act of protest.
At the same time, the Public Order Act 2023 deploys measures against protestors which have more typically been seen in combatting terrorism. The Act permits the police to stop and search people without suspicion for articles used in peaceful but disruptive protests in some circumstances. It also permits courts to impose “Serious Disruption Prevention Orders” on protestors, which in some ways resemble the Terrorism Prevention and Investigation Measures introduced in 2011. They allow the courts to place substantial limitations on peoples’ freedom of assembly, expression and movement, by prohibiting them from “entering a particular place or area”, “being with particular persons” and “participating in particular activities” and other constraints on using the internet. These restrictions can be imposed for up to 2 years and renewed for another 2. The imposition of lengthy custodial sentences for non-violent acts, of orders that severely impact people’s freedoms even when they have not been convicted of an offence and the overall lowering of the threshold at which police can interfere with protests, raises serious questions about the proportionality of these measures.
We should celebrate the demise of the Bill of Rights Bill, a piece of legislation as poorly drafted as it was poorly conceived, but its core aim of neutralising the HRA may yet come to pass as we bear witness to its gradual nullification. The protections of the HRA overlooked, as the government recognises that bills may not be compliant with it, but insists that Parliament pass them anyway. The HRA’s core protections of freedom of expression and assembly, the prohibitions on slavery and torture downgraded or denied outright, sacrificed on an altar of political expediency or in tribute to an unfathomable culture war. The HRA defanged of its procedural teeth with immigration and sentencing laws shielded from having to comply with human rights law as every other piece of legislation has for over 20 years. The HRA dragged into an illiberal vortex of legislation, slowly stripped of its essence, dying by a thousand cuts.
Stuart Wallace.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.