Human Rights Legislation Reform

Joanna Cherry Excerpts

Monday 24th October 2022 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

Does the hon. Member see any role for the protection of minority rights under the Human Rights Act and the ECHR?

[Scott Benton]

I thank the hon. and learned Lady for her intervention. If she will wait a few moments, I will cover that. Of course, all aspects of human rights should be covered within our provisions and protections, but there should be a balance between protecting those rights and allowing the Government to ensure that national security issues are protected at the same time.

The British people rightly believe that they should be subject to British law, made by British lawmakers for whom they have voted and by British judges. This Government were elected in 2019 on a manifesto that promised to update the Human Rights Act to ensure a proper balance among the rights of individuals, our national security and effective government.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill). I am in a very significant measure of agreement with him, particularly about the need for evidence-based policy making.

I rise to speak as Chair of the Joint Committee on Human Rights. I remind Members that it is a Joint Committee of both the Commons and the Lords, which takes half its members from each House. It is, of course, a cross-party Committee. As the Committee responsible for scrutinising the Government’s human rights record, we have conducted two inquiries considering plans to reform the Human Rights Act. During our inquiries, we heard evidence from experts with a diverse range of views and from people who have benefited from using the Human Rights Act. Having considered all that evidence, we remain of the view, which we have expressed in a number of previous reports, that the Human Rights Act is functioning as intended and enables human rights to be enforced effectively in the United Kingdom, with little need for recourse to the European Court of Human Rights. For that reason, based on the evidence we have heard and the information we have considered, we believe that the Government have failed to make the case for repealing and replacing the Human Rights Act with a Bill of Rights.

We were pleased to have confirmation from the current Lord Chancellor that the Government were looking again at the Bill of Rights Bill and that its progress would be paused while they conducted a thorough review of the Bill. We were pleased to hear that, unlike before, he intends to look at the evidence base, including the independent Human Rights Act review. We were concerned by the Government’s lack of engagement with experts, Parliament and the public over the Bill of Rights Bill. It followed the independent Human Rights Act review, as we have heard, significant parliamentary engagement and inquiries, and a public consultation exercise, which elicited over 12,000 responses. That is the sort of extensive engagement we should be having before we embark on reform, but engagement has to be genuine and have meaning and purpose, and those who engage should be listened to.

The Bill of Rights simply does not reflect what the Government heard from Parliament’s Committees, their own commissioned independent review or their consultation exercise. The Government’s own consultation analysis shows that many responders were in favour of maintaining the status quo and the Human Rights Act, and believed that the changes proposed were unnecessary. Despite that lack of support, the Government decided to pursue a reform, in which they went to the length of repealing and replacing the Act altogether.

The Government’s consultation analysis provided scant to no reasoning to explain why they decided to disregard the views of a significant number of consultees. In the Joint Committee’s opinion, that calls into question the integrity of the whole consultation process preceding the Bill of Rights. We concluded that, given the overwhelming lack of support for these radical reforms, repealing the Human Rights Act and replacing it with a Bill of Rights was neither democratic nor necessary. We were particularly worried about the international implications of repealing the Human Rights Act. Our primary worry was that removing the Act would weaken protections for people living in the United Kingdom, but we were also worried about how it would be perceived internationally.

When we visited the Council of Europe and the European Court of Human Rights in Strasbourg earlier this year, we highlighted our concerns. It was emphasised to us that the Human Rights Act is viewed internationally as the gold standard and a model example of how human rights can be effectively embodied into domestic law and practice. It was impressed on us by our interlocuters that any weakening of the mechanisms in the Act could damage the United Kingdom’s reputation internationally and weaken the UK Government’s position when seeking to ensure that other states uphold their human rights obligations. Importantly, we were left in no doubt by those we spoke to that the United Kingdom’s status as a leading member of the Council of Europe and one of the founders of the ECHR means that any reforms to the Act that suggest that we are wavering in our commitment to the convention’s protections could be a green light for other less committed nations to weaken their own human rights protections.

Other hon. Members have spoken about the incredibly positive impact that the Human Rights Act has had on human rights in the United Kingdom, and the Joint Committee has highlighted that in a number of its reports. It has highlighted that it has made it far easier for individuals to enforce their rights, because they can do so in their domestic court, and that is much cheaper and easier. Before the passing of the Human Rights Act, an individual had to take their case directly to the Court in Strasbourg. That process was subject to long delays, by which I mean many years, and on average cost applicants £30,000. As the hon. Member for Bromley and Chislehurst indicated, another benefit of the Human Rights Act is that it has led to a significant decrease in the number of cases brought against the UK before the European Court of Human Rights in Strasbourg, because we resolve our own human rights problems at home, in the domestic courts of our jurisdiction. The hon. Member gave some statistics about that.

Contrary to what people sometimes think, having a Human Rights Act, and incorporating the ECHR into the domestic law of the United Kingdom, has also enabled courts—in my jurisdiction of Scotland and in those of England and Wales, and of Northern Ireland—to influence the development of European Court of Human Rights case law. We heard that there is a strong dialogue between the UK Supreme Court and the Court in Strasbourg; they both influence each other’s jurisprudence, and that often works to the benefit of the United Kingdom.

Another important thing that the Human Rights Act has done is embed a human rights culture in public authorities. We heard from a number of witnesses—including an NHS trust, the National Police Chiefs’ Council and the British Association of Social Workers—that the Human Rights Act has placed human rights at the centre of decision making in public authorities, and that the legal framework assisted them in making complex decisions.

We also heard that the Human Rights Act has been central to the devolution of justice and policing in Northern Ireland, and of course we know that it is embedded in the Good Friday agreement. It also plays a very important role in the constitutional underpinning of the Scottish Parliament and the Welsh Senedd. As other hon. Members indicated, in my own jurisdiction of Scotland, the Scottish Parliament has gone beyond the Human Rights Act to embed, for example, the UN convention on the rights of the child. The Joint Committee was very clear that we do not believe that the Human Rights Act should be reformed without the consent of the devolved legislatures, because it is so important to them.

I want to be clear: the Joint Committee on Human Rights is not saying that there should not be any amendments to the Human Rights Act, but we would like human rights protections to be strengthened rather than weakened. For example, we want the right to protest—a very important aspect of the right to freedom of expression—to be given greater protection in the Bill of Rights Bill, and we want the right to an effective remedy, as protected by article 13 of the ECHR, embedded. We also want the Government seriously to consider incorporating other international human rights treaties, such as the UN convention that I just mentioned and the refugee convention. That should include the right to seek and enjoy asylum from persecution, in terms similar to those of article 14 of the universal declaration of human rights.

We are pleased that the current Lord Chancellor has paused the process. We had a very positive letter from him last week. We are looking forward to engaging with him, and we are delighted that the Government will go back and look at the independent review in a way that they did not before. The Committee will continue to engage with the Government, but we emphasise that we believe in evidence-based policy making. It is our view that so far we have seen no evidence to justify the argument that significant changes to the Human Rights Act are either necessary or desirable.