Why the new ‘independent review’ of the Human Rights Act is worrying

The Conservative government launched an ‘independent review of the Human Rights Act’ this week. After years of huffing and puffing about human rights, with promises to scrap the Human Rights Act, withdraw from the European Convention on Human Rights (ECHR) and introduce a vague ‘British Bill of Rights’, the Conservatives have made their move. And the result is pretty pathetic.

Firstly, let us assess what the review is not. The Justice Secretary, Robert Buckland, has stated: “After 20 years of operation, the time is right to consider whether the Human Rights Act is still working effectively.” The review, however, is not a neutral assessment of the effect of the legislation after two decades. As has been pointed out by barrister Adam Wagner, each of the specific issues the review will consider is framed by negative connotations of the act – asking whether the courts have been “unduly drawn into areas of policy”, whether there is a “case for change” and whether there is “room for improvement”.

The review will not, it would appear from its sparse terms, look at the benefits of the introduction of the Act that has helped, for example, those with disabilities challenge mistreatment or the victims of the Windrush scandal. It is also disingenuous to suggest that this is the natural time for a government review – this is the fourth time that the government has reviewed the Human Rights Act over a 13-year period.

Secondly, the dramatic reform of scrapping the Human Rights Act – so long the cry of ambitious Tory politicians who did not understand the basics of the proposition – is not on the agenda. This reveals the limits of ‘culture wars’ in our politics; calling for populist change by vaguely blaming judges for political problems will ultimately not get one very far. Withdrawing from the ECHR is a political minefield that would leave the UK and Belarus as the only European states failing to be a signatory to this most basic promise to respect human rights. It is also a position that misunderstands the rights-based common law that has developed principles in so many different legal contexts making it difficult, if not impossible, to roll back.

Thirdly, the timing of such a review is questionable. The Ministry of Justice is facing a crisis in the courts with a backlog of cases clogging up the criminal courts and delays to family cases causing real harm to the subject children. That is not to say constitutional reforms should always be put on the back burner, but is this the time to prioritise tampering and restricting our human rights law? Indeed, as Shadow Justice Secretary David Lammy has argued, the restrictions of our liberties enforced by Covid and the lockdown only emphasise the importance having strong human rights checks.

Fourthly, the review is wholly undermined by the secretive approach that the government has taken to constitutional change. As set out in the formal announcement, the human rights review is designed to intertwine with the ‘independent review of administrative law‘ (otherwise known as the Faulks’ panel on judicial review). This panel has refused to publish the submissions that it has received from campaign groups, lawyers and other organisations.

When asked by David Lammy whether he could assure the same approach would not be adopted with regard to the human rights review, Robert Buckland blustered without answering the question. It is a basic principle of a fair process that government consultations are undertaken in an open manner. There is absolutely no good reason not to publish the submissions received by the review. Accordingly, eyebrows are understandably raised at the notion that this review is ‘independent’.

With regard to the politics, David Lammy was right this week to emphasise the de-political nature of human rights. Winston Churchill was a powerful advocate for human rights in the aftermath of the second world war, whilst not always practising what he had preached. In a powerful speech after the war, he argued: “In the centre of our movement stands the idea of a charter of human rights, guarded by freedom and sustained by law.”

It was also a Conservative MP, David Maxwell-Fyfe, who helped draft the first convention on human rights. Whilst the modern Tories have apparently decided not to attempt to ‘scrap’ the Human Rights Act just yet, many leading Conservatives of the past would feel betrayed by Boris Johnson’s rabble attempting to thwart the protection of human rights and limit the room for judicial review.

The limited nature of the proposed reforms reveal two things about this government. Ultimately, its populist zeal will often be thwarted by the political and legal reality. But its determination to appease its populism is likely to still lead to negative restrictions on our rights. Accordingly, Labour is right to stand resolutely in defence of the Human Rights Act and not compromise to the shallow ideologues in government advocating reform.