The UK government has recently announced a review of the application of judicial reviews and the Human Rights Act 1998 (HRA). The timing and aims of these reviews is concerning.
A crucial legal document, the HRA represents the core civil liberties of individuals in the UK. The act is directly inspired from the Council of Europe’s European Convention on Human Rights (ECHR). Moreover, the HRA enshrines the Convention Rights within domestic UK law.
The HRA contains fundamental human rights such as, the right to life (article 2), the right to a fair trial (article 6), and the right to freedom of expression (article 10). The articles are classed as being either absolute or non-absolute. Absolute articles are fiercely protected—meaning no derogation is permitted under any circumstances. Conversely, non-absolute articles may be derogated from provided the exceptions are necessary, proportionate, and in accordance with law.
The legislation proposed to manage the current public health crisis impacts human rights. The right to protest (article 11) has been under particular threat by the government. Nonetheless, the HRA is a powerful legal instrument and it explicitly states it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”. So, the HRA can only be used against public authorities or any organisation considered to carry out public functions.
Should an individual feel their rights have been breached by a public body, they may be permitted to bring a claim for judicial review. A judicial review is a powerful legal mechanism that can be used to challenge public bodies if they have acted unlawfully.
Judicial review has assisted several individuals in accessing their legal rights, including challenging decisions made by local authorities, actions against the police, and against the Home Office. Recently, the Court of Appeal granted permission to appeal by judicial review the Crown Prosecution Service (CPS) rape policy. The Centre for Women’s Justice (CWJ) and the End Violence Against Women (EVAW) coalition are pursuing the legal action due to concern regarding the fall in rape prosecution rates.
In July 2020, the UK government launched the Independent Review of Administrative Law (IRAL) to consider options to reform the process of judicial review. The review seeks to “consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government”.
Similarly, there is now a risk of the possible curtailment of human rights law as the UK government announced the Independent Human Rights Act Review (IHRAR), launched on 7 December 2020. The review is said to examine “the relationship between domestic courts and the European Court of Human Rights (ECtHR) and the impact of the HRA on the relationship between the judiciary, the executive and the legislature”.
The reviews should be approached with apprehension, as they risk undermining the rule of law. The rule of law is a fundamental principle that essentially means nobody is above the law. Should judicial review be reformed in a way that severely limits the ability of citizens to challenge public bodies, there is a risk that the rule of law will be undermined.
In its short-lived life of only twenty years, the HRA has been hauled into political discourse, with many adopting a hostile approach to the act. Such misinformed opinions regarding who the HRA protects, its origin, and its importance appeared to be fuelled through Brexit as political discourse has failed to appreciate the HRA is a piece of UK legislation, allowing citizens to access their legal rights. Through Brexit discourse, many individuals failed to understand that the ECHR was created by the Council of Europe, as opposed to the European Union.
Recently, the Lord Chief Justice warned of unprecedented levels of political interference over the work of courts in England and Wales. The IHRAR sets out to examine the separation of powers, an important concept outlining the separation in functions between the three branches of the state: the executive (government), the legislature (the two Houses of Parliament), and the judiciary (the courts). The IHRAR’s findings—set to be published in summer 2021—will be crucial in examining this relationship.
Anti-human rights rhetoric has persisted throughout political discussion. In 2015, the Conservative Party manifesto proposed to scrap the HRA entirely and instead introduce a British Bill of Rights (BBoR) to “restore sovereignty to Westminster”. A core issue with creating a BBoR arises through the devolved nations of the UK. The Scottish Human Rights Commission has expressed unwillingness for a BBoR, and repealing the HRA risks breaching the Good Friday agreement that sealed the peace process in Northern Ireland.
Worryingly, there is now alarming discussion regarding a retreat from the ECHR to favour the hostile environment in the treatment of asylum seekers. The “hostile environment” is a term used to describe the policies which aim to make living in the UK very difficult for migrants.
The reviews are a cause for concern as the HRA protects the rights of everyone, including soldiers, disabled people, and journalists to name a few. In August 2020, community organiser Ken Hinds was threatened with arrest and prosecution by the Met Police for organising an anti-racism protest march. He initiated the first stage of judicial review—a pre-action protocol letter—highlighting the discriminatory disparity in targeting a Black-led organisation where no other protests had faced the same threats. As a result, the Met Police dropped the investigation and accepted that “political bodies” were an exception under the public health regulations.
Judicial review is an important legal process which upholds the rule of law, providing individuals with a means to challenge public bodies. Should this right be curtailed, citizens are at risk of being subjected to an overbearing state, with no recourse to challenge unlawful acts and decisions.
THE INTERNATIONAL IMPLICATIONS OF THE PANDEMIC
The global pandemic has highlighted the rife inequality ever-present in society. Considering both of these major reviews have been announced in the midst of the pandemic, they should each be approached with caution. Should any changes be made to weaken the HRA and judicial review procedure, the rights of individuals in the UK will be threatened. Potentially, a retreat from human rights and democracy from the UK may cause a domino effect to prompt other states to follow suit.
With the pandemic affecting the rights of several intersecting groups, it is concerning that states are withdrawing from human rights protections as opposed to upholding and strengthening them.
The UK’s decision to undergo both reviews of the constitutional framework comes at a vulnerable time. Globally, there has been a decline in human rights during the COVID-19 pandemic. This decline sets a harrowing image regarding the importance of human rights in the view of governments. Rather than weakening human rights protections, states should implement sufficient and fair legislation that at its core preserves, protects, and upholds the rights of citizens.
Harleen Roop has recently graduated with an LLM in Human Rights Law from Queen Mary University of London. She is keen to explore intersecting and emerging areas of human rights, for example, her dissertation focussed on whether the UK should criminalise online misogyny.