The hostility that recent UK governments have shown towards human rights continues unabated. Indeed, it is increasing. It has been manifested in a number of ways. The origins of the antipathy can be traced to certain judgments of the European Court of Human Rights (ECtHR). Notable here are Hirst v UK and Al-Skeini v UK. In Hirst v UK the Grand Chamber held that the UK’s position as to the disenfranchisement of convicted prisoners violated article 3 of Protocol 1 to the European Convention on Human Rights 1950 (the Convention). Here it may be recalled that the thought of prisoners having the vote made former Prime Minister David Cameron ‘physically ill’. Such was the aversion to granting prisoners the franchise it took the UK government twelve years to allow a very small number of convicted prisoners to vote. By doing so, the UK finally complied with the obligation it has under article 46 of the Convention to abide by judgments of the ECtHR to which it was a party.
In Al-Skeini v UK the same court found that the UK’s responsibility under the Convention extended to circumstances in Iraq where it had control of an area there following the UK and US invasion in 2003. The circumstance here was the death of Baha Mousa at the hands of British soldiers following his arrest at a hotel in an area under British control. This case ultimately influenced the enactment of Oversees Operations (Service Personnel and Veterans) Act 2021, which affects the discretion of courts to extend periods of limitation in certain human rights claims. More generally, however, both of these cases affected and engendered anti-ECtHR sentiment in certain circles (as regards prisoner voting and overseas jurisdiction). They were put forward as part of the justification by the UK government for its action against human rights and the ECtHR in the decades that followed.
One aspect of that action was the UK’s lead in the conclusion of the Brighton Declaration in 2012. This sought to enshrine into the law and practice of the Council of Europe human rights system the principles of subsidiarity and the margin of appreciation. The former generally provides that decisions should be taken at the member state level as far as possible, and the latter that member states have a discretion in the interpretation and application of the human rights found within the Convention.
It was thought by the UK government and others that, through enshrining these new principles within the Convention, the position of the state parties would be strengthened and, accordingly, the status and power of the ECtHR and its case law would be weakened. In other words, the balance of power and authority would shift from the Convention and the ECtHR towards the UK and other parties. The Brighton Declaration eventually led to the conclusion of Protocol 15 to the Convention. It added a new introductory paragraph, a recital, to the preamble to the Convention referring to the two principles.
A decade later, in June 2022, the UK government introduced to Parliament the Bill of Rights Bill. This sought to make considerable changes to the present system of human rights protection. It would have repealed the main piece of legislation, the Human Rights Act 1998, and replaced it with a new statute, the Bill of Rights Act. The Human Rights Act 1998 is a statute of major significance. Simply put, it introduced human rights into UK domestic law. The Act made the rights found in the Convention justiciable in UK courts and bound all public authorities (widely construed) to act compatibly with them. It is widely accepted that the Act has had a beneficial impact, in part by limiting the exercise of power by public authorities, including the UK government itself, where the human rights of those within the jurisdiction of the country are violated or unlawfully interfered with.
As with the Brighton Declaration, the Bill of Rights Bill was intended to strengthen the UK government and Parliament vis-à-vis the ECtHR. Notably, it also sought to strengthen the state as against individuals. The first clause of the Bill provided that the Act clarified and rebalanced the relationship between the ECtHR, UK courts and Parliament. As regards the ECtHR, the Bill explicitly provided that the Supreme Court was the ‘ultimate judicial authority on questions arising under domestic law in connection with Convention Rights’. As regards UK courts and Parliament, the Bill sought to limit the applicable interpretative rules such that courts would have been obliged to give greater respect to the will of Parliament evident in the course of enactment of the legislation in question when interpreting it.
The Bill of Rights Bill also contained a clause set to introduce a permission stage in human rights claims. This would have weakened the protection offered to individuals in this country, in that in some cases persons could be denied access to the courts. Further, the Bill restrained the imposition and expansion of positive human rights obligations. Positive obligations, developed by the ECtHR, entail an obligation on national authorities to take necessary measures to safeguard a right or protect the rights of the individual. Ultimately, and to the relief of the vast majority of human rights supporters, the Bill of Rights Bill was withdrawn on 22 June 2023, purportedly for reasons of the legislative agenda. Its shelving, however, has not led to an end to the government’s onslaught on human rights.
Following the Bill of Rights Bill is a further legislative assault on human rights by the UK government taking the form of the Illegal Migration Act 2023. This is the most explicit and aggressive attack upon the current system of human rights protection yet. Admittedly, it only covers a specific minority of persons, those being individuals arriving in the UK irregularly. This means, in almost all cases, by way of small boats from France. This fact does not lessen the effect of the Illegal Migration Act 2023 upon human rights. Indeed, that it affects such a vulnerable group in fact exacerbates that impact.
Stopping asylum seekers from arriving in the UK on small boats was one of the five key priorities outlined by Prime Minister Rishi Sunak in January 2023. The Illegal Migration Act 2023 is at the forefront of the plan to meet that pledge. The main effect of the Act is to, in practice, ban from asylum all persons except those who arrive in the country under an approved scheme or directly from the country they have fled. There are three approved arrangements, relating to Syria, Ukraine and Afghanistan. In all other cases an asylum seeker must arrive directly in the UK. This is, of course, very difficult, if not impossible, for most asylum seekers. The only way in practice to arrive in the country is through continental Europe and across the English Channel.
Whilst this general prohibition on the irregular arrival of asylum seekers may not directly conflict with an existing justiciable human right, it does run contrary to the Universal Declaration of Human Rights. Article 14 of this Declaration provides that everyone has the right to seek and enjoy in other countries asylum from persecution. More relevantly from a legality perspective is the conflict between the Act and the Convention on the Status of Refugees 1951. The latter is predicated upon the fact that entering into a country to claim asylum is not unlawful under international law. Indeed, rather than criminalising entry, the 1951 Convention obliges state parties to afford certain protections to refugees and to determine their status. In a House of Lords debate on the Illegal Migration Bill, Baroness Chakrabarti said a “refugee convention refugee can never – I repeat, never – be illegal”.
Directly illustrating the impact upon human rights of the Illegal Migration Act is the fact that the Home Secretary was unable to make a statement that the Bill was compatible with human rights when introducing it to Parliament. This is a requirement found under section 19 of the Human Rights Act 1998. This provides that in the course of a new piece of legislation being made, the government minister in charge of the bill has to either make a statement that it is compatible with human rights or a provide that it is not possible to make such a statement. The government admitted it could not say the Bill was compatible with human rights.
Practically, the Act provides that a key feature of UK human rights law does not apply to it. This is the obligation upon courts to interpret law compatibly with human rights as far as it is possible to do so. The Act, for the first time since the Human Rights Act 1998 entered into force, expressly excludes this obligation from applying to it. Former Deputy President of the Supreme Court, Lord Hope, said in a House of Lords debate on the point that it was “a major incursion into the rights guaranteed by the Convention”. Further aspects inimical to human rights in the Illegal Migration Act 2023 are the provisions excluding from judicial consideration certain human rights, slavery and human trafficking claims.
The Illegal Migration Act 2023 is amongst the strongest recent manifestations of the UK government’s view that human rights law is a hindrance that frustrates its political initiatives, and one whose origins and nature are somehow foreign. Pending before Parliament is another, the Safety of Rwanda (Asylum and Immigration) Bill. The first perception is accurate. Human rights can, do and should constrain government action. That is their exact purpose where a public authority violates, or threatens to violate, the basic entitlements of people within the country in an unjustified and disproportionate manner. Human rights law is precisely designed to act in such a way. That is its raison d’être. A mature and responsible government must accept such limitations on its power.
The perception that human rights are a foreign invention imposed by foreign institutions is misplaced. Indeed, the UK played a material role in developing the Convention in the aftermath of the Second World War. Fifty years later, the Human Rights Act 1998 gave it effect in domestic law. Together these instruments play a crucial role in protecting fundamental rights of everyone in the country and across Europe. As such they should be valued, celebrated, and supported, not attacked and maligned.
