The Human Rights Act: The next casualty of British populism?
Editor’s Note: This post was updated on 1 July 2022 for comprehensiveness.
On 22 June 2022, the UK Government introduced to the House of Commons a long-awaited draft Bill of Rights. According to Justice Minister Dominic Raab, it is intended to "curb abuses of the [human rights] system and reinject a healthy dose of common sense." In pursuit of this aim, however, the Bill restricts the ability of claimants to bring human rights cases in domestic courts and has the potential to significantly weaken human rights protections in the UK.
The Bill of Rights would repeal and replace the Human Rights Act— the centrepiece of the UK’s rights protection framework, which incorporates the European Convention on Human Rights (ECHR) into domestic legislation and serves as its rights charter. In justifying the changes that the Bill of Rights will bring, the government has presented a very bleak picture of the status quo—a framework that allows an overbearing European Court of Human Rights (ECtHR) to shape domestic policy, that improperly brings British judges into the legislative sphere and protects the rights of foreign criminals at the expense of the public interest. This stands in contrast to the generally positive findings of the Independent Human Rights Act Review (IHRAR) commissioned by the government and the parliamentary Joint Committee on Human Rights.
The government’s narrative is not new. It repeats the same mischaracterizations of the Human Rights Act that have been deployed by previous Conservative Party governments, in what has been a long-standing (and thus far unsuccessful) bid by the Party to repeal the Act. As an established bête noire that taps into some of the same grievances stirred up by Brexit, it is not surprising that the cause has been taken up by Boris Johnson’s government as it seeks to shore-up support amongst its populist voters.
It is helpful to understand populism as Mudde and Kaltwasser do, as ‘a thin-centred ideology that considers society to be ultimately separated into two homogenous and antagonistic camps, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people’. The second point to note is that populism can take different forms and that it has the capacity to influence politics in situations that fall short of the sort of system-takeover that has occurred in Hungary and Poland.
The populism that has most shaped British politics in recent years has been associated with the political right in England; its values tend to be socially conservative and authoritarian and incorporate elements of (largely English) nationalism, Euroscepticism and a hostility to immigration. Its chief mouthpiece was the United Kingdom Independence Party (UKIP), which from the late 1990s achieved electoral success by exploiting growing dissatisfaction with Britain’s liberal consensus. In 2016, the Brexit referendum revealed this dissatisfaction had evolved into what Norris and Inglehart have termed a ‘cultural backlash’. This left the country divided along a cultural cleavage, with voters who endorse populist values showing a greater level of support for UKIP and for leaving the European Union (these voters are colloquially known as a ‘Brexiteers’).
Whilst the cultural cleavage is long-term, its manifestation in the Brexit referendum result was what Sobolewska and Ford have described as a ‘moment of awakening’. It transformed the political landscape, splitting both of the UK’s major political parties (the Conservative Party and the Labour Party) and leaving a large section of the electorate (the populist side of the cultural divide) politically under-represented—at the time of the referendum, UKIP was the only party fully aligned to this group of voters.
The referendum empowered the Eurosceptic wing of the Conservative Party and led to a re-orientation of the Conservatives towards the Brexiteers. To woo these strategically important voters, the establishment-friendly Conservative Party has adopted light forms of the populist tactics and tropes that were formerly the preserve of UKIP. This has had the effect of mainstreaming and sustaining populism in British politics even after the Conservatives succeeded in marginalising UKIP and its successors.
Recent data indicate that the cultural cleavage may be fading but the importance of the Brexiteers to the Conservative Party’s 2017 and 2019 electoral successes (and the Party’s declining support) means that it continues to employ a values-based approach, as is evidenced in the culture wars it persists in fomenting. The attack on the Human Rights Act is one of these.
Is the draft Bill of Rights likely to become law?
The draft Bill of Rights is just the latest (albeit the most advanced) in a series of, until now, unsuccessful Conservative Party efforts to scrap the Human Rights Act (see the Party’s 2010 and 2015 manifestos and their 2014 strategy paper). Will it fare better than its predecessors?
The Bill and the public consultation document which preceded it show very little change in the Party’s thinking. As was proposed previously, the draft Bill of Rights seeks to reduce the domestic influence of the European Court of Human Rights (ECtHR) by removing the requirement in the Human Rights Act that British courts ‘take into account’ its jurisprudence. Again, it seeks to restrict British courts’ judicial law-making ability by curtailing judges’ interpretive powers. And again, it aims to combat the ‘rights culture’ by striking a different balance between the rights of ‘undeserving claimants’ (the consultation document cites numerous cases involving unpalatable ‘foreign criminals’) and the national interest (see for example clause 8 of the Bill), and by putting a stop to ‘frivolous or spurious’ cases (see clause 15). The analysis underpinning the draft Bill of Rights has been widely contested.
Whilst these arguments and solutions have until now failed to deliver reform, there is reason to believe that the post-Brexit political landscape may be more propitious.
The majoritarian thrust of the draft Bill of Rights meshes well with Brexiteer populists, who are likely to view it as an unshackling of the government and parliament (the voices of the People) from the restrictions imposed by the liberal judicial elite (particularly those sitting in Strasbourg) and the demands of unpopular minorities. Now a distinctive and self-conscious electorate, Brexiteers have demonstrated a capacity to effectively mobilise around their populist values. The traction that the Bill has with Brexiteers is likely to have been increased by events since the referendum, including the British courts’ interventions in the Brexit process and, more recently, the ECtHR’s intervention in the government’s controversial off-shore asylum seeker processing scheme.
At the supply level, we have already seen that Boris Johnson’s government is aligned and committed to these voters in a way that his predecessor David Cameron was not—even as they have become increasingly out of step with broader public opinion. Just as important is Boris Johnson’s majority in the House of Commons. Whilst fractured, it too reflects the Brexiteer alignment and has shown itself not to be squeamish about passing legislation curtailing human rights (more on this later). It is worth noting here that there is no indication at present that a change in party leadership would lead to a significant re-orientation. As one commentator put it, Johnson’s departure would likely precipitate a battle between successor candidates ‘to offer Johnsonism without Johnson’.
Yet, significant obstacles to reform remain. The House of Lords (the upper chamber of the UK Parliament), which has of late become progressively more combative in its defence of human rights, may well oppose aspects of the Bill and inflict damage by invoking its delaying powers. More problematic would be opposition from the devolved legislatures in Northern Ireland, Scotland and Wales, whose consent may be needed to replace the Human Rights Act. Highly critical submissions made by the devolved governments of Scotland and Wales and by Northern Ireland’s Equality Commission suggest that such consent would not be forthcoming, which could lead to a situation in which different human rights standards were applied in different parts of the UK and on different issues.
If the draft Bill of Rights becomes law, what would it mean for human rights protections in the UK?
In its current form, the Bill of Rights would make it more difficult to bring human rights cases in domestic courts. For instance, clause 15 introduces a permission stage in which human rights claimants would have to first prove that they had ‘suffered a significant disadvantage’ before the substance of their case could be decided upon. As is its intention, this additional hurdle would lead to fewer cases reaching a substantive hearing. Another impediment can be found in clause 8, which almost entirely removes the ability of “foreign criminals” to challenge their deportation on the basis that it would breach their Convention right to respect for private and family life—they would have to prove that deportation would result in a family member coming to “extreme” harm (a very high threshold). As well as being discriminatory (it would, of course, only apply to non-citizens), Professor Mark Elliott notes that this provision does not accord with ECtHR jurisprudence. The divergence from the ECHR that it creates would give rise to a situation in which some human rights claims barred domestically by clause 8 could still be brought in the ECtHR because the UK would still be bound by the ECHR—which allows individuals to apply to the Court to have it adjudicate a complaint concerning the violation of the Convention. The process of applying to the ECtHR is, however, slow and expensive and hardly a perfect substitute for a timelier domestic hearing.
Expert analysis of the proposals on which the Bill is based suggests that whilst the Bill of Rights could bring about far-reaching changes, it is unlikely to deliver on some of the bigger promises made by the government, largely because it will not withdraw from the ECHR. The gap between rhetoric and reality raises the possibility that dissatisfied critics of the Human Rights Act may in time ratchet up the pressure for the more radical option of the UK withdrawing from the ECHR. Outside of the ECHR, the UK would no longer be within the jurisdiction of the ECtHR and the government would have much greater freedom to re-write its human rights protections. The government’s rhetoric indicates that if it were given a freer hand, human rights protections would be sparser. The obstacles to an ECHR withdrawal, however, are greater than those facing the draft Bill of Rights, and include the EU-UK trade agreement, under which the UK appears to have committed itself to the ECHR.
Yet, even if the draft Bill of Rights is not passed into law and the UK remains a party to the ECHR, the current repeal effort is likely to have already damaged human rights protections in the country by promoting a narrative that undermines the legitimacy and stability of the current regime. As alluded to above, its bleak mischaracterization of the status quo follows a well-trodden path and will surely perpetuate long-standing public misconceptions about the Human Rights Act, such as it being a ‘villain’s charter’. The IHRAR was sufficiently concerned about the state of public knowledge that it recommended the government develop ‘an effective programme of civic and constitutional education in schools, universities and adult education’. The narrative is thus likely to further weaken public confidence in the current regime and make it vulnerable to meddling.
Any weakening or damaging of human rights protections is particularly concerning at a time when the government has become increasingly bold in its efforts to restrict civil liberties and hostile in its treatment of migrants. Examples of this include the Public Order Bill, in which the government is seeking draconian powers to prevent disruptive protest, and the Nationality and Borders Act, which empowers the home secretary to, without notice, strip British citizenship from dual nationals and those born abroad.
Disclaimer: Opinions expressed in this commentary are those of the author and do not necessarily represent the institutional position of International IDEA, its Board of Advisers or its Council of Member States.